Periodically, I come across reports updating progress toward a so-called “Article V” Constitutional Conventions. The last time I looked, twenty-eight states had called for one; only thirty-four are needed.
I’ve shared my concerns about that movement previously–in mid-2014, in a column for the Indianapolis Business Journal, and again, on this blog, in 2017. The major forces behind this effort to convene what proponents call an “Article V” convention are ALEC and the Koch brothers, which tells you pretty much everything you need to know about the motives of the proponents..
My original arguments against calling such a convention were rooted in history, which tells us that major changes in government rarely reflect the relatively benign and/or limited expectations of people who agitate for that change.
In this case, state lawmakers who favor a new constitutional convention argue that it would allow delegates to devise a framework for reigning in overspending, overtaxing and over-regulating by the federal government and would move the U.S. toward a less centralized federal government. Many of them insist that an Article V convention could be limited to consideration of those goals.
Warren Burger, former Chief Justice of the United States, begged to differ, writing
[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.
But even if a convention could be limited, the enumerated goals are Pandora-box wide.
For example, Wall Street bankers argue that financial laws are “overregulation;” if polls are to be believed, most taxpayers view the same rules as barely adequate.
My definition of “overspending” would include the massive subsidies enjoyed by fossil fuel companies and the obscene amounts we spend on the military; yours might be Medicare or farm subsidies.
“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.
I could go on. And on. But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes, or even the predictable influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.
Even bright graduate students came into my classes with little or no knowledge of American history or government. Most had never heard of the Enlightenment or John Locke or Adam Smith. A truly depressing percentage of my undergraduate students were unable to explain what a government is, and had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.
The danger inherent in calling deeply polarized and depressingly under-educated politicians together to “improve” the Constitution should be obvious. Do we really want people like Marjorie Taylor Greene or Paul Gosar—or their Red-state-level clones–deciding how the American Constitution should be changed?
In the years since I first became aware of this effort, I have seen no reason to revisit my original concerns about such a convention. As Common Cause has warned,
With no rules and complete uncertainty about the constitutional process, an Article V convention would cause political and economic chaos. There is no language in the U.S. Constitution to limit a convention to one issue, no guidelines for rules to govern a convention, no rules on who picks the delegates and how they are selected, no guarantee that the American people would be equally represented, and no limits on corporate special interest influence.
I can only imagine what sorts of regulatory changes the Koch brothers hope to make, or what the armies of anti-journalism “Trumpers” would do to the freedoms of speech and press. Proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christianity) would see this as a God-given (!) chance to dismantle the Wall of Separation between Church and State.
We should also remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking, that they are also at risk. A convention might also end up with participants reflecting the majority of Americans who think it’s time to get rid of the Second Amendment and the Electoral College, and a great idea to outlaw gerrymandering…
In other words, such a convention would be a monumental crap-shoot.
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