Ancient maps had a warning about unknown territory: Here Be Dragons. That’s how I feel about how some conservatives are calling for a constitutional convention. Article Five of the U.S. Constitution is silent on how a convention would work. That silence troubles me as it indicates a high degree of risk. Here Be Dragons indeed.
The idea of a new constitutional convention has been popular on conservative talk radio, but it popped onto the public stage with Jeb Bush’s recent op-ed in The Wall Street Journal. My cynical self says Jeb’s trying to burnish his conservative bona fides, but he claims a constitutional convention is necessary to have term limits for Congressional members and a balanced budget amendment.
I think a constitutional convention is akin to walking on the tracks of a long, dark railroad tunnel. By the time you know the train’s coming, it’s too late. Thus, a person walking into the tunnel or constitutional convention might believe all will be well at the other end – but the only certainty is the high risk involved.
A convention also would be a Le Brea Tar Pit of lawsuits.
Here’s why: Article Five has no instructions about the workings of a constitutional convention. It sets forth requirements for calling a convention (two-thirds of the states must ask the Congress for a convention) and how proposed amendments arising from a convention are to be ratified, but that’s all.
Article Five’s silence practically guarantees lawsuits on every aspect of a convention’s operation.
Some say their state legislatures have passed bills that would limit the convention to consideration of certain issues. However, it’s possible that these issues would vary from state to state, plus Congress may choose to add or delete issues in its call for a convention. And once the delegates are seated and the doors to the convention hall are closed, no-one can predict what will happen on the floor. (More on that below.)
Next, who would decide how many members would participate in the convention? How would each state be represented? Who would be eligible to participate? Article Five has no answers.
The eligibility issue is interesting, as illegal immigrants are allowed to practice law in California and New York. If illegal immigrants can practice law legally in certain states could they be constitutional convention delegates? How about resident aliens who practice law? Ultimately, I believe, it would be up to the courts to decide eligibility – as a result of a lawsuit from someone who was denied delegate status.
Would the number of delegates be tied to population, and if so, would delegates have to come from each Congressional district (to reflect the body politic) or via some other way? Would this issue bring about a lawsuit? Yes!
Voting rules would be critical to the operation of a convention. Who would decide what the rules would be? As a former student of voting rules under Professor Emeritus Dennis Mueller of the University of Vienna (Austria), I know these rules are important.
For example, the Declaration of Independence was passed by the Continental Congress under a unanimity-voting rule. Delegates initially opposed to the Declaration declared they would refuse separation from Great Britain if it was imposed upon them by the other colonies.
Would the proposed constitutional convention also require a unanimity-rule for passage before presenting it to the fifty state legislatures for ratification?
Or would they opt for a three-quarters rule, or a two-thirds rule?
Another important item I believe conservatives overlook is the role of blue states in a constitutional convention. Mr. Bush’s op-ed seems to envision a convention where only red states participate. Sorry Mr. Bush, but Vermont, Washington, Oregon, etc. would be present.
Or maybe not. What if blue states chose to boycott the convention en masse, and sue in the Supreme Court that the convention is illegal?
Further, Bush believes the convention’s issues could be limited. History indicates otherwise. The original Constitutional Convention was convened to amend the 1781 Articles of Confederation. But soon the Convention delegates decided to scrap the Articles and start afresh, with the Constitution being the result.
Social conservatives should be particularly concerned about what might happen behind the proposed convention’s closed doors, as I would expect liberals to push for changes to the First Amendment in exchange for support for some of the conservatives’ proposals. This is called ‘negotiation.’
Are conservatives willing to put limits on freedom of speech and worship in exchange for amendments for term limits, a balanced budget, etc.?
In plain language: for conservatives to amend the constitution with stuff they like, they’ll have to allow liberals to have some changes they want.
Lastly, recent history demonstrates how conservatives need to be careful in what they wish for.
In 2005, conservatives were calling for a majority vote (‘up-or-down vote’) for President George W. Bush’s judicial nominees. Then-Senate Majority Leader Bill Frist (R-TN) supported this.
Back then, I asked a conservative activist: what would happen if someday Democrats had control of the Senate? I got a dirty look for an answer.
Fast forward to 2013, when then-Senate Majority Leader Harry Reid (D-NV) got a rules change for that up-or-down vote. Senate Republicans howled over a change that they had supported only eight years before.
The lesson for those looking to fix our laws via a constitution convention: Here Be Dragons. And they’re right next to a huge legal tar pit. Don’t go there.