Recently in The Federalist, I asked, “Why is the Right Betting the Constitution on an Article V Convention?” Mark Meckler, who heads the Convention of States (CoS) Project, wrote a countering essay, arguing that an Article V Convention of the States must be a good idea because left-wing groups oppose it.
Meckler’s Exhibit A is an amusing video of Hillary Clinton, America’s mistress of deceit, and a list of leftist groups said to oppose the CoS project. Of course, leftists object to anything conservatives propose. Witness Kamala Harris saying she would not take a Covid-19 vaccine if President Trump said to take it. They also don’t tell the truth, so it’s unclear if their real goals differ from their stated desires.
Meckler quibbles about whether he is promoting an Article V “Convention of the States” or a “Constitutional Convention”—usually called “Con-Con.” That no-difference distinction does not change language in your pocket Constitution: “The Congress . . . on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . .” Article V specifies that three-fourths of the states must ratify amendments, but it says nothing about operating procedures for the convention.
For the sake of discussion, I’ll concede that House Speaker Nancy Pelosi won’t take control of the convention, even though she violated congressional rules when setting up her January 6 commission. I’ll also concede that Republicans control 31 legislatures at this time.
Whether political dynamics like these will remain static until 34 states file convention applications with Congress is a matter of speculation. Meckler should concede that the 50 states are independent sovereign political entities, both red and blue, and not monolithic. All would act in their politicians’ interests.
Even in red states, Republicans may not have the will, power, or votes to appoint or elect only conservatives. That is already the case with many elected Republican officials. Most delegates also likely would be politicians appointed by the same politicians who keep accepting budget-busting federal grants and, in 2020, allowed state officials to change or override election procedures.
Meckler claims there are historical precedents for convention procedures, citing previous state or regional conventions. None of these was an Article V event. A search of the WestLaw legal database reveals no federal court decisions addressing procedures for an Article V Convention of the States.
Delegates to an unprecedented convention of both red and blue states would horse-trade and compete for power to decide credentials, rules, agenda, and possible amendments. This is what conventions do.
Conservatives should be wary. Regardless of how an Article V convention of the states is called or who promises what, optimistic expectations cannot be guaranteed. Progressive delegates could easily dominate the proceedings from beginning to end, including ratifications.
Given the pre-election shenanigans seen in 2020, why wouldn’t they? The concern here is not about a “runaway” convention, but an event that does exactly what progressive state delegates want.
Meckler promises that a Convention of the States would only consider amendments within the broad scope of issues mentioned in the application language. Once the gavel drops, however, convention delegates could propose “amendments” with radical, unexpected consequences.
For example, it is not difficult to imagine the language of a proposed Human Life Amendment being gutted to codify Roe v. Wade. Law Professor Emeritus William A. Woodruff explains how with a thought-provoking point:
Amendments can be used to accomplish something way beyond the original proposal. Consider how we got the Affordable Care Act (Obamacare). In 2009 the House passed a military housing bill (HR 3590) and sent it to the Senate. Democrats needed to quickly pass Obamacare while they still held a Senate super majority. They amended HR 3590 by erasing everything except the bill number and substituting the Affordable Care Act legislation.
The ‘amended’ bill, which looked nothing like the House-approved HR 3590, passed the Senate 60-39 and was sent back to the House for a 219-212 favorable vote. Only majority votes would prevent similar unpleasant surprises at a Convention of the States.
Someone could propose limitation of the Supreme Court to nine justices, but the convention could substitute an amendment specifying 18-year, staggered terms for Supreme Court justices. One of three Progressive, Libertarian, and Conservative Draft Constitutions set forth by the Constitution Drafting Project already proposed this. The same Draft Constitution recommended reducing the number of senators to one per state, chosen by each state legislature and limited to nine years, and a single six-year term for presidents.
The revised Second Amendment would ban infringement on “the right to keep and bear arms of the sort ordinarily used for self-defense or recreational purposes . . .” and the States may “. . . enact and enforce reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.”
The excerpt is from the Conservative Draft Constitution, not the Progressive one. Some concepts make sense and others are unacceptable, but sober debate and guaranteed outcomes in a convention of both red and blue states would not be possible.
Meckler promises conservatives that the ratification process would prevent harmful consequences, but the argument concedes that a convention could produce bad amendments. Show me a conservative movement that cannot elect good lawmakers to pass good laws, and I’ll show you a conservative movement unlikely to control the delegates, rules, or outcome of an Article V Convention of the States.
Three-fourths of the states could block progressive amendments, but huge costs will have been wasted on a multi-stage constitutional crisis that produces nothing worthwhile. Time, money, and energy would be better spent electing good people and working for sound policies that might restore confidence in government.
We are talking about the U.S. Constitution, the splendid document that underlies our republic if—as Benjamin Franklin said—we can keep it. My initial question remains unanswered: what justifies a high-stakes gamble with the Constitution? If this risky wager is lost, conservatives will ask the saddest question of all: Where do we go to get our Constitution back?