Whether or not the United States should have a new Constitutional Convention was one of the issues debated at the recent convention of the American Bar Association in San Francisco. It is an issue that is shrouded in mystery because there are so many unknowns. Just about the only thing we can predict with certainty about any new Constitutional Convention is that it would NOT be secret and that meddling media coverage would exacerbate every controversy. We could never again enjoy the advantage of our Constitutional Convention of 200 years ago, which deliberated for four months in secret, without prying reporters, without media coverage, and without even any leaks.
Article V of the Constitution says that Congress “shall” call a convention if two-thirds, or 34, states request it. Now pending are 32 applications for a Constitutional Convention to consider a Balanced Budget Amendment, and bitter battles have taken place in many states as Convention advocates try to round up two additional states.
The 1921 case of changes in the U.S. Constitution should be the result of a “contemporaneous consensus.” This is why most constitutional amendments proposed in the 20th century have had a time limit of seven years. The current series of 32 resolutions calling for a Constitutional Convention are not within any time frame that could be called “contemporaneous.” In the last seven years, only two states have passed a call for a Constitutional Convention for a Balanced Budget Amendment: Alaska in 1982 and Missouri in 1983. Since there is obviously no contemporaneous public demand, the advocates of a Constitutional Convention for a Balanced Budget Amendment have resorted to a remarkable piece of legislative chicanery in order to compel the calling of a Constitutional Convention anyway.
A proposed Constitutional Convention Implementation Bill introduced into the current Congress prescribes a time limit of seven years during which state resolutions calling for a particular Constitutional Convention can be validly passed by state legislatures, BUT it would give the CURRENT series of Convention resolutions for the Balanced Budget Amendment a privileged time-span of 16 years. This would “grandfather in” all the old resolutions going back to the first ones in 1975, and would prop them up on an artificial life-support system until 1991, so that enormous political and financial pressure can be exerted on two or three targeted states in order to achieve the magic total of 34.
The same people who are trying to initiate a Constitutional Convention by tricking us about the rules for calling one are now trying to assure us that a Constitutional Convention would be harmless because it would be limited to consideration of a Balanced Budget Amendment. Their assurances do not inspire confidence.
There is a curious ambivalence among those leading the effort to get state legislatures to pass these Constitutional Convention resolutions. Some claim that they want a Convention to be convened, while others claim they are just trying to force Congress to vote out a Balanced Budget Amendment in the traditional amendment procedure and are counting on Congress to oblige as soon as the total reaches 33 states.
Convention advocates cite the way Congress voted out the 17th Amendment in 1913, ordering the direct election of Senators, after all except one of the required number of states had passed Constitutional Convention resolutions. It’s hard to take this argument seriously when they deliberately ignore the fact that, in the 1960s, 33 states passed resolutions for a Constitutional Convention to overturn the Supreme Court’s “one man one vote” decision, but Congress simply thumbed its nose at the states, and nothing happened.
More importantly, it is difficult to understand those who, out of one side of their mouths, urge state legislatures to vote FOR a Constitutional Convention while, out of the other side of their mouths, they assure us that a Convention will never happen, virtually conceding that this route is a recipe for confusion.
Such doubletalk about the Constitution is unworthy of the subject. Chief Justice John Marshall reminded us that we must “never forget that it is a CONSTITUTION we are expounding.” Likewise, we should never forget that it is a Constitution we are talking about amending. It deserves more respect than to be treated, to use a current metaphor, like “a potted plant.”
James Madison, the father of our Constitution, said it best when he wrote: “Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a second.” Madison said that in an era when a second convention could have been chaired again by George Washington.
