In response to the esteemed Rob Kenyon’s piece stating that An Article V Convention Is A Bad And Potentially Dangerous Idea, I feel it is appropriate to submit the counterpoint that the fear mongering that is gathering in opposition to an Article V Constitutional Convention is inaccurate as there is simply no real danger. I am not a proponent of such a Convention, though I think it would be fascinating political theater. I believe that, while our National Debt is absolutely out of control, modern governments need to be able to accrue debt. To use the ultimate argument – the world would be speaking German and Japanese if the United States couldn’t accrue debt. The (I would however support an amendment regarding congressional term limits, but that doesn’t seem to be on the table and so the point is moot).
I will begin my counterpoint by saying that Rob Kenyon is correct that ALEC oversimplifies some of the challenges facing such a convention. As I previously stated, no one knows exactly how such a convention would work. This scares many people like Mr. Kenyon, the Washington Post, and others. There are possibilities that Congress would be able to set an agenda as a part of the call, but it more probable that the delegates to the convention would be able to go beyond any such agenda. However, I am not planning on going down the rabbit hole of the details of the role of Congress vs. the role of the State Legislators or the holdings in Leser v. Garnett, because none of that matters. Such conjecture is simply unnecessary. The underlying mechanism in Article V will certainly prevent any of these so-called “dangers” from coming to pass, and, in truth, will likely also prevent any of the potential “benefits” from coming to pass.
Getting a call for a Constitutional Convention issued by congress is actually the easiest part of getting an amendment passed, and it can be readily observed that it is well-neigh impossible to do. The Friends of the Article V Convention have searched the congressional record and determined that there have been seven hundred sixty-three actions by State Legislatures related to the calling of an Article V Convention. Fifty-nine of these actions were rescissions of previous calls (including Virginia’s rescission in 2004) and the calls have covered a wide array of topics. The most common topic in recent history has been a balanced budget amendment. This means that in the two hundred and twenty seven years that the U.S. Constitution has existed, there has been an average of three and a third actions involving Constitutional Conventions per year. And what has come of all of that effort? Nothing. Why? Because it is damn hard to bring about an Article V Constitutional Convention. And as I previously stated, getting the convention called is the easy part.
Are we even close to getting an Article V Convention called? If we assume that Congress will demand that the calls be topic-similar (which they do because otherwise a convention would have been called) and that they will allow for rescissions (which they would because it makes sense and otherwise a convention would already have been called), thirty-five states have called for an Article V Convention relating to a balanced budget amendment. Eight states (including Virginia) have since rescinded their calls without a re-issuance. That means that there are only twenty-seven states with active calls for a balanced budget amendment. Close? Not really. Could we get another seven states issuing calls for balanced budgets? Yes, it is possible.
So let us assume the call happens. Could we end up with the dreaded runaway convention? Yes, it is possible. Is it likely? Probably not. Does it matter? Simply put, no. Let us assume the worst case scenario – the delegates to the convention are as aggressive as possible and start passing wild amendments, horse-trading away the Second Amendment for Term Limits, revoking the Tenth Amendment in exchange for eliminating the EPA, and revoking the President’s Role as Commander-In-Chief in exchange for a balanced budget. Crazy stuff! OMG! The country is in danger!!! Um… no it isn’t.
Once the convention proposes an amendment, the amendment needs to be ratified by 3/4 of the States. There is no way that thirty-eight states are going to agree on any amendment that is not well drafted, well thought, and highly rational. In fact, it is likely that many states would reject any amendment that went outside of the scope of the Call for the Convention simply because it is out of scope. Is it possible that that thirty-eight states might vote in favor of one or two well-drafted and thought out amendments? Yes, but even that is unlikely – I mean, despite significant lobbying by groups such as ALEC, we currently only have twenty-seven states willing to even call for the convention, let alone pass an amendment.
In short – the “runaway convention” is simply not a danger. Not for any of the reasons that ALEC or its opponents crow about, but simply because thirty-eight states have to ratify any amendment that the delegates of the convention propose. The only possible issues that could create enough support for thirty-eight states to approve are the same issues that would create enough support for thirty-four states to call for a convention upon. In reality, the only two that might exist today are term limits for congress and a balanced budget. Sorry Mr. Kenyon, the danger simply isn’t there.