OverviewSeveral organizations are contacting state legislators throughout the nation to promote resolutions petitioning Congress to convene a constitutional convention. This poses a great danger since leading constitutional scholars say that such a constitutional convention could not be restricted as to the amendments it could consider and propose. Such a convention could lead to proposing one or more amendments that could have a very harmful effect on our freedoms under the U.S. Constitution.
Diagram of a Con-Con Call
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 State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
1.) On the application of the Legislatures of two thirds of the several States, The Congress...shall call a convention. The text does not specify when and how a convention is to be convened. There is no legal precedent that specifies how delegates are selected, how they are compensated, etc. Consequently, there is no certainty as to who the delegates would be. Congress is given a free hand to determine the method of selecting delegates.
2.) for proposing Amendments. The text does not indicate if a convention could be limited to consideration of the amendment or the subject matter which it is called to consider. No legal provision limits the constitutional convention in the amount of amendments it can consider or propose.
3.) which...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. Congress chooses the mode of ratification. As in the case of the first Constitutional Convention in 1787, states legislatures do not have the ultimate power of ratification. There is also a risk that the delegates could change the mode of ratification entirely.
General Objections 1.) The Convention cannot be limited to a single proposed amendment and is likely to be a runaway.
"One of the most serious problems Article V proposes is a runaway convention. There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights." - Associate Justice Arthur Goldberg
"There is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention would make its own rules and set its own agenda." - Chief Justice Warren Berger
2.) The Convention could fundamentally change our Constitution or replace it altogether.
"We have only one Precedent, the Convention in Philadelphia in 1787. It was summoned, "for the sole and express purpose of revising the Article of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein." From the very beginning it did not feel confined by the call and gave us a totally new Constitution that completely replaced the Articles of Confederation. I see no reason to believe that a constitutional convention, 200 years later, could be more narrowly circumscribed." - Charles Alan Wright, School of Law, The University of Texas at Austin
3.) Selection of Delegates for the constitutional convention is undefined in the plain language of Article V.
"...the absence of any mechanism to ensure representative selection of delegates could put a runaway convention in the hands of single-issue groups whose self-interest may be contrary to our national well-being." - Associate Justice Arthur Goldberg
"At a minimum...the Federal Judiciary, including The Supreme Court, will have to resolve the inevitable disputes over which branch and level of government may be entrusted to decide each of the many questions left open by Article V." - Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School
4.) State Legislators do not have the ultimate power of ratification.
"The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the states, or conventions in a like number of states." Hawke v. Smith, 253 U.S. 221 (1920)
Solutions
Action
Resources
Further ReadingConstitutional Convention Can Not Be Controlled - In recent months the action most heard in state houses across the nation is a rising call for a new Constitutional Convention (Con Con), but no one can control a Constitutional Convention (October 28, 2011 article by Tom DeWeese). Renewed Push for a Con-Con - There is an alarming increase in otherwise credible conservative voices clamoring for the state governments to call for a constitutional convention (April 8, 2011 article by Joe Wolverton, II).
Constitutional Convention: 10-Point Refutation - The Goldwater Institute has published a document entitled "10 Facts to Rebut the Mythology of a Runaway Convention," but an examination of the Institute's Facts show that the threat of a runaway Constitutional Convention is real (March 16, 2011 article by Joe Wolverton, II).
Confusion Over Constitutional Conventions - Confusion still abounds over the Article V provision for a constitutional convention (May 27, 2010 article by Jack Kenny).
Who Needs a New Constitutional Convention? - Those who wish to centralize power and turn the Constitution on its head may have their way if we succumb to the calls for an Article V constitutional convention (May 26, 2010 article by Gregory A. Hession, J.D.).
Pushing for a Constitutional Convention - New calls for a con-con, purportedly to rectify the abuse of ever-expanding government power and the Constitution are not necessary if the public would but be educated as to the original intent of the Constitution, forcing officials to once again abide by it.
Dangers of a Constitutional Convention - This article from the July 6, 2009 issue of The New American magazine includes two color maps showing the high water mark of the balanced budget con-con campaign and the number of states which have rescinded all previous calls for a con-con.
Term Limits: A Threat to our Constitution - This 1997 fact-filled presentation dispels any notion that good government can result from a game of musical chairs in government via term limits.
Term Limits - Still a Bad Idea - When voters are dissatisfied en masse with congressmen, calls begin to be heard for term limits but that may make the situation worse, particularly, if a constitutional convention is called for the stated purpose (May 25, 2010 article by Gregory A. Hession, J.D.).
Term Limits Temptation - This article from the June 10, 1996 issue of The New American magazine provides a definitive rebuttal to applying term limits to members of the U.S. Congress. It also exposes how powerful individuals and organizations were using the popularity of term limits among conservatives in 1996 as bait to entice them to help bring about a constitutional convention. This article is especially relevant today because similar powerful forces are once again building up in support of term limits and a con-con.
Limit Government, Not Terms - This article about term limits was adapted from the January 1995 John Birch Society Bulletin.
Florida's Call for a Constitutional Convention - This is a summary of Florida's passage of SCR 10 in March 2010 which calls for a constitutional convention. It contains links to the voting records and videos of the Senate and House sessions. |
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Dangers of a Constitutional Convention |
