Most state legislatures are now in regular session for a limited number of days, and there’s no shortage of important work to be done at the state level. Yet many state legislatures are wasting precious time on a scheme to change the U.S. Constitution by calling for a national convention.
Although it is theoretically allowed by Article V of our Constitution, a convention for proposing constitutional amendments has never been held, and there is no precedent to guide how it might work. That hasn’t stopped a small group of wealthy donors from spending an estimated ten million dollars on a path that would throw our Nation into a constitutional crisis.
Justice Antonin Scalia called it a “horrible idea” during the year before his untimely death. “This is not a good century to write a constitution,” Scalia warned in 2015, after spending 30 years defending our original Constitution on the U.S. Supreme Court.
Of the first eight state legislatures to consider the idea this year, all eight have rejected it. These states are Arkansas, Kansas, Montana, South Dakota, Utah, Virginia, Washington, and Wyoming.
But the convention remains very much alive in Texas, where Gov. Greg Abbott has made it an emergency item in the current legislative session. Lt. Gov. Dan Patrick, who controls the agenda in the state senate, is also demanding its passage.
In Texas, where most elected officials are Republicans, the state Republican Party is on record favoring a national convention to amend the U.S. Constitution. That’s directly contrary to the Republican National Platform, after the national platform committee rejected a similar proposal by a nearly unanimous vote last summer in Cleveland.
Arizona would be the ninth state to reject the convention this year, if the state senate stands by its vote of 13-17 last Wednesday, February 22, to reject the Convention of States bill. But that legislation, HCR2010, continues to be pushed hard behind the scenes, and it could be revived due to a motion for reconsideration.
The campaign for a convention masquerades under the misleading slogan Convention of States, which falsely implies that states can exert some measure of control over the agenda, rules, or apportionment of a convention to amend the U.S. Constitution. In fact, all such powers are reserved to Congress or to the convention itself.
Rex Lee, the legendary Solicitor General under President Ronald Reagan, wrote that there’s no way to limit the scope of a constitutional convention to the single issue or issues stipulated by those who advocate it. Anyone who guarantees such a limited convention, Rex Lee added, “is either deluded or deluding.”
Former Chief Justice Warren Burger also warned against the false hope that an Article V convention can be limited. “The convention could make its own rules and set its own agenda,” Burger wrote. “After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.”
In Utah, a Republican state senator who voted against the convention observed: “Even if we change the wording, unless we get people back there who are really committed to constitutional principles, we’ll have the same problem no matter what we do.” A Democratic state senator who also voted against the Convention of States added, “When you begin replacing Madison and Jefferson and Hamilton ... you’re going to need a lot of help.”
As Phyllis Schlafly once remarked, “Alas, I don’t see any George Washingtons, James Madisons, Ben Franklins, or Alexander Hamiltons around who could do as good a job as the Founding Fathers — and I’m worried about the men who think they can.” She is credited with defeating the push for a constitutional convention in the 1980s, and she considered those efforts to be as important as defeating the Equal Rights Amendment a decade earlier.
The Constitution says that only Congress may “call” a constitutional convention, so it would not be a “convention of states” but rather would be convened (called) under the direction of power-brokers in Washington, D.C. Congress or the Supreme Court would require the convention to be apportioned by population, which means big liberal states like California and New York would have greater power than most conservative states.
The Constitution itself has never been the problem, and changing it is not the solution. A constitutional convention would attempt to repeal or dilute the Second Amendment right to bear arms, eliminate the Electoral College, require tax-funded abortion, eliminate restrictions on immigration, and dilute the definition of citizenship.
The original Constitutional Convention of 1787 had three essential conditions: complete secrecy from the media, participants who fought in the American Revolution against tyranny, and George Washington presiding. None of those necessary conditions exist today.