By Harold Pease, Ph. D
The California State Legislature is contemplating joining other states in proposing an Article V Constitutional Convention to change the U.S. Constitution like unto that used by the Founding Father in 1787. Under the authorship of Assemblywoman Shannon Grove, it patterns its proposal after sister states Alaska, Florida, Georgia, and New Hampshire each of whom falsely presume that they can limit a new constitutional convention to only the proposals submitted. This column is directed to state representatives in other states also under the same false assumption. Unfortunately well-meaning patriots throughout the land, in their desire to “take back their government,” are, in their ignorance of our history, risking the Constitution itself.
Article V reads, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution.” Outside the Bill of Rights we have had 17 such changes. But what if Congress itself becomes corrupt and will not initiate change, as is the case now with the federal governments failure to be fiscally responsible? The Founding Fathers gave the people a second avenue through their states to force Congress to enact change. “Or, on the Application of the Legislatures of two thirds of 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 States, or by Conventions in three fourths thereof.” But Congress, not the states, calls the convention, “as the one or the other Mode of Ratification may be proposed by the Congress.” Notice that, once called, the states have no power to limit change.
The California call for a constitutional convention limits its delegates to just two areas: “support for amendments that impose fiscal restraints on the federal government, and which limit the power and jurisdiction of the federal government.” (This coming from a state legislature that shows the same fiscal irresponsibility and same tendency to grow its power at the expense of county and city jurisdiction, as does its federal counterpart.) Such a requirement has no force of law once the convention convenes, and if each state submits differing proposals dozens of changes are likely. The convention, already convened, will proceed as did its predecessor, the Constitutional Convention, despite their authorization to only revise the Articles of Confederation. They discarded the entire document and began anew. Fortunately the resulting Constitution is a much better document but unfortunately a precedent was established for starting anew, which WILL BE REPEATED with a new Constitutional Convention. There exists no way to prevent a run-a-way convention.
Yes, proponents of a new convention argue, that the new changes will be returned to the states for three-fourths ratification. This assumes that this requirement was not changed by the new convention. Remember, under the Article of Confederation a unanimous approval of all states was required. The Constitutional Convention changed this to just nine of the thirteen states. Since state delegations are likely to include members of Congress it might be concluded in the new convention that no good reason exists to send it back to the states for ratification. So much for California, or any other state, having any real ability to limit the outcome of a new convention. Moreover, in the last Constitutional Convention new changes were not sent back to the states individually, only the package as a whole. Support or rejection was the only two options allowed. This too will be repeated.
New Hampshire law is probably the most restrictive in making their delegates stay within parameters established by its state legislature, even criminalizing their action if they depart. A new convention, sensitive to the fate of those exceeding their instructions, could in the new document simply void any state punishment for delegates having done so.
There exists a much better way “to take back our government”—the way that already works—one amendment at a time beginning with the proposed Balanced Budget Amendment if desired. Returning to California’s two areas of needed constitutional change, actually we do not need an amendment to restore fiscal responsibility. Article I, Section 7 already does this if used. Nor do we need any new amendments “to limit the power and jurisdiction of the federal government,” Article I, Section 8 and Amendment 10 already do this when followed.
Anyone familiar with the Constitution knows that it is a precious document that reflects the wisdom of the ages and can handle any problems now besetting this nation. In my Contemporary Events political science class students are required to solve problems of today by the Constitution, rather than by political party, and we are successful in every instance. What we lack is not the wordage and authority to bring a wayward government back in line but those who know the Constitution well enough to defend it and use it.
Obviously getting Congress to follow what already exists is the problem. Where is the evidence that they would read, understand, or use a new document, or if we are lucky to get only a few new amendments, any better than the Constitution that under oath Congress has already pledged to defend and obey? The traditional way to use Article V allows plenty of time for debate and there exist no danger of throwing out the baby (the U.S. Constitution) with the bath water.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.