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CONSTITUTIONAL CONVENTION

Who would most benefit from a Constitutional Convention?

The answer isn't as clear as it could be, as many fear such a convention would destroy our current Constitution, while others insist that it would force Congress to finally listen to the citizens on issues such as a balanced budget amendment, clarification of Second Amendment rights, establishing a simply written and equitable Fair Tax in lieu of the current taxing system, and many other things of great concern to many of us. So how do we determine if it is something we need to do, or if we are we better off staying with the status quo?

A quick read of Article V of the Constitution shows that our Founding Fathers anticipated a runaway Congress, and possibly even loss of citizen control due to greed and graft (which many people feel is present now with all the lobbyists' and special interest groups spending money like it was water to influence the members of Congress). It states, "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."

In simple terms under the first, and common, scenario, amendments may be passed by a two thirds majority of both houses of Congress, but cannot be ratified (enacted) until approved by three fourths of the legislatures of the states, or conventions held in those states for that specific purpose. Scenario two takes a different twist to the process. After passage by the legislatures of two thirds of the states determining that they desire a convention call, each filing an application with Congress, Congress must then call for a Constitutional Convention. But here is where it starts getting difficult to process, and for a number of reasons.

Because no Constitutional Convention has ever been convened since the first one, there are many unanswered questions about how a convention would function. One major question is whether the scope of the convention's subject matter could be limited. The consensus is that Congress probably does not have the power to limit a convention, because the wording of Article V leaves no part of that decision to Congress, merely stating that Congress "shall" call a convention when the appropriate numbers of state applications have been received. Comments made at the time the Constitution was adopted indicate that Congress would have no discretion. Another question is whether Congress must tally all applications received, regardless of their subject matter, or if they must tally according to the subject matter of the applications. If Congress must tally them according to subject matter, then it would only be able to call an Article V convention if it receives applications from 34 states requesting an Article V convention to address identical subject matter. States have requested that Congress call an Article V convention to propose amendments on a variety of subjects. According to the National Archives, Congress has, however, never officially totaled the applications, nor separated them by subject matter. Every time a convention call by the two thirds majority of the states has been placed before Congress, they yield to the pressure and pass the legislation necessary to avoid making the convention call. (The Seventeenth, Nineteenth, Twenty-First, Twenty-Second, and Twenty-Fifth Amendments came about as a result.)

There have been two nearly-successful attempts to amend the constitution by convention since the late 1960s. The first try was an attempt to propose an amendment that would overturn two controversial Supreme Court decisions, Wesberry v. Sanders and Reynolds v. Sims, dealing with voting districts and apportionment of votes in state elections. That attempt was only one state short of reaching the thirty-four needed to force Congress to call a convention in 1969. After this peak, several states rescinded their applications, and interest in the proposed amendment subsided. The second nearly-successful attempt to call a convention was in the late 1970's, early1980's, in response to the burgeoning federal deficit and National Debt. States began applying to Congress for a constitutional convention to propose a balanced-budget amendment. By 1983, the number of applications had reached thirty-two, only two states short of the thirty-four needed to force a convention. The push for the amendment subsided, this time in response to concerns about whether a constitutional convention could be limited to a single subject and because Congress passed the Gramm-Rudman-Hollings Act, which required that the budget be balanced by 1991 (but was overturned by the Supreme Court in 1986). The rescission of a states application also raises some questions, as there is nothing in Article V that states such an appointment may be recalled, especially by a state legislature other than the one who voted for it in the first place.

The questions raised by Ohio and New Jersey's attempts to withdraw their ratification of the Fourteenth Amendment, and Secretary of State William H. Seward's proclamation may hold the key to answering that question. (Seward's proclamation noted that Ohio and New Jersey lawmakers had reversed themselves and purported to rescind. Further, Seward's proclamation questioned the validity of those reversals. Shortly thereafter, both houses of Congress adopted a concurrent resolution likewise declaring the Fourteenth Amendment as having been duly ratified and listing Ohio and New Jersey among the states approving it. Thus, it would therefore appear that states may not undo prior ratifications of amendments, although they may ratify an amendment which they had previously rejected. The same should hold true of an application to Congress calling for a Constitutional Convention, it may not be rescinded but may be accepted after first rejecting it. Also, once an application is filed, it should stand to reason that there is no expiration date attached to it unless there is, in fact, a statement included in the legislation providing for expiration. A classic case of precedence would be what became our Twenty-Seventh Amendment, proposed in 1789 and ratified more than 200 years later in 1992.

Next is the question of who appoints the delegates to a convention. Those who fear it the most believe the POTUS would influence the choosing of delegates, but everything I've found indicates that the state legislatures would be charged with those appointments. This precedent was established with the first Constitutional Convention, as its delegates were appointed by the individual states. It would also stand to reason that the appointees would number an amount equal to the number of Representatives and Senators each sends to their individual legislatures, but not include any members of Congress or state legislature. How would those numbers, and their political stances, affect the outcome of a convention? Of the current makeup of state legislatures, twenty-seven are under Democratic control, sixteen are under Republican control, and seven have split control. However, several of those under Democratic control on the state level also voted Republican in the 2008 elections and have Republican governors. Additionally, many of the Democratic controlled state legislatures have voiced displeasure with the current rate of taxation and excess spending of the current Congress. So it is highly possible that they would be extremely interested in forcing Congress, and the White House, to reduce their spending to an amount equal to or less than the actual revenues that come in via the several methods of taxation and tariffs. Add to the mix the state legislatures who have passed or are considering legislation demanding that the Federal government adhere to the Tenth Amendment and you have a force growing within the nation that may begin to resonate through the halls of Congress in ways we might not expect.

So, if states have the power to limit a convention to a particular subject matter and Congress only has power to call a convention, but no further power to control or regulate it, then the concern of whether an Article V convention could "go off the reservation" and become a "runaway convention" that attempts to exceed its scope isn't really a concern after all. An Article V convention would merely be empowered to propose amendments. Until ratified, proposed amendments would have no constitutional effect. If a convention did attempt to exceed it scope, therefore, none of the amendments it proposed would become part of the Constitution until three-fourths of the states (thirty-eight) ratified them. The states themselves, therefore, act as a check to control a convention, by not ratifying amendments that have been inappropriately adopted. If a convention did attempt to exceed its scope, and the states still chose to ratify its proposed amendments, the proposed amendments would have to enjoy widespread popularity, since ratification requires the assent of even more states than are required to call a convention in the first place. Fears that an Article V convention might exceed its scope are most likely unfounded, considering the experience with state constitutional conventions. Over 600 state constitutional conventions have been held to amend state constitutions, with only slightly perceptible evidence that any of them have exceeded the scope of their duties.

There are many reasons to actively seek a Constitutional convention, not the least of which would be a balanced budget amendment in view of the present spending habits of the current Congress and Administration. Having a fair or consumption tax in the mix would also please most Americans, as well as term limits on the members of Congress, a change in how they receive benefits after they no longer serve, limiting how lobbyists and special interest groups can interact with members of Congress and their staff, as well as.... Well, there's a laundry list of concerns Americans have about Congress and how they operate. And the only way, other than voting out the whole bunch, is to call for a Constitutional Convention. Not that it would ever really come to that, simply because Congress fears a Constitutional Convention far more than any of us. The very threat of having to call for one is enough to scare the devil out of most of the members of Congress, not to mention the current Administration. And I firmly believe we need to do more than scare them, we need to make sure they act in accordance with what is in the best interests of our nation, and adhere to our Constitution, even if it takes forcing a Constitutional Convention to do it.

WAKE UP, AMERICA!!

WE'RE BEING SOLD DOWN THE RIVER!!

And we need to take action NOW to force our government back on the right track, while we still have a government of the people, for the people, and by the people.

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