Franke: The Risk Inherent in a Convention of States

April 19, 2023

by Mark Franke

“You are uninformed.”

I was told this at a display table for the national Convention of States (COS) organization which was exhibiting at the spring conference of the Indiana American Legion. This was in response to my stating concern that such a convention could go rogue because the sponsors could not absolutely control the agenda or the end product.

Remember 1787?

The Continental Congress called a similar convention to amend the Articles of Confederation primarily to address the Congress’ inability to levy taxes. James Madison, Alexander Hamilton and others hijacked the convention to write an entirely new constitution, one that had no legal basis in the Articles. One can sense the shifting mood across those four hot and humid months in Philadelphia as a majority of individual delegates and state delegations saw an entirely new document as the best way to fix the national government.

We can be thankful that Madison, et. al., did what they did but what is to prevent that from happening again, this time by less brilliant and less nobly minded people? The Convention of States group insists that the convention would be limited to specific amendments defined in advance. Why is COS confident of that? The argument is that the Constitution’s Article V speaks to amending the existing Constitution and does not legitimize writing an entirely new one for direct submission to the states. Neither did the Articles of Confederation, by the way.

There is a safeguard in the requirement that whatever amendments come out of the convention must still pass muster in three-quarters of the states. Presumably this would mean one amendment at a time and not as a full package. Once again, the specter of 1787 rises. Keep in mind Article V’s option for state ratification—either through the state legislature or by special state convention.

The Convention of States people have valid concerns about how our Constitution is being interpreted these days, concerns I share. I especially object to the near total negation of federalism, the balance of powers principle that was critical in generating support throughout the states for the current Constitution. I am not so naïve to think that our dysfunctional Congress could propose an amendment or two to adequately address this.

Some of the impetus for the convention is the federal government’s complete inability to restrain itself fiscally. The irony here lies in the fact the first convention was called to give taxing power to an impecunious national government while now we need a convention to restrain its spendthrift taxing and borrowing orgies.

But do I sense naivete in the Convention of States organization’s thinking a convention can be limited by the language of the petition calling for it? It proposes to restrict discussion to amendments that “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”

Good ideas, all, but can this putative limitation be enforced? COS believes it can and presents reasonable, logical arguments to that effect. One hopes COS is right but I reserve my skepticism on things proceeding reasonably and logically in this political environment.

The frustration within the citizenry is understandable. It doesn’t seem to matter which party is in the White House or controlling Congress. (Actually, it does but only at the margin.) This is a valid exercise of constitutional rights and participatory democracy. “Nonpartisan” Common Cause begs to differ. It labels the supporters as “far right” of course, a pro forma epithet hurled by those on the left toward anyone who disagrees with their brave new world. I particularly enjoyed Common Cause’s description of the process as being run by “conspirators” and taking place “behind closed doors.” Apparently the folks at the COS table didn’t know they weren’t supposed to have an open display to obtain signatures on a public petition.

Common Cause has reason to be exorcised over the success of the COS movement. To date 19 of the 34 required states, including Indiana, have used their Article V authority to call for the convention. The movement may be stalling as no new states have signed on in 2023 although “active legislation” exists in 20 states according to the COS website.

I don’t think I am uniformed on this issue nor do I think I am misinformed. Have I drawn a logically valid conclusion from the language of Article V given the events of 1787? Even if not the most likely outcome, a runaway convention certainly is a possibility as history instructs us.

I wish them luck but perhaps not too much luck. To paraphrase Aesop: Be careful what you wish for; you just might get it. Or this advice from H. L. Mencken: “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.


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