2014/02/04

Article V convention proposals misguided

We have recently seen a flurry of movements to convene an Article V convention to propose amendments to the U.S. Constitution (links at the end). They are driven by the realization that only amendments might reverse wrong directions taken by the federal government, and because many of those amendments would need to reduce the powers claimed by Congress, the development of proposed amendments is not something we can expect Congress to do. They are right about both points, and we have developed our own proposed amendments, but we also offer a far better strategy for getting such amendments adopted and implemented.

Such movements are not new. There have been many in the past. They've all failed, because they've all made the same few mistakes, are making the same mistakes again, and seem unable to learn from those mistakes. Here are the common mistakes:
  1. They underestimate the difficulty of composing sound amendments. Except for the first ten, the Bill of Rights, almost all that have been proposed or adopted have been sloppily written and did not work out as intended. Recent proposals by most reform groups are even worse.
  2. They imagine an Article V convention will be composed of persons who can and will compose sound amendments. There are probably less than 200 persons alive with the skills to compose sound amendments, they don't agree on any, and  none of them would be delegates at any Article V convention.
  3. They ignore the careful preparatory work needed to develop sound amendments by teams of experts meeting to hammer them out with extensive public discussion. We do need conventions, but not a comprehensive Article V convention. We need to assemble as many of those constitutional amendment experts as we can to develop proposals for reversing specific  court precedents, probably separate conventions for each wrong precedent.
  4. They seek a few sweeping amendments that will reform everything, when the only thing can can work are amendments narrowly tailored to overturn specific lines of court precedents. Because amendments are so difficult to get ratified, they seek to do too much with too few, generally between one and ten. That won't work. Broad amendments would have to be written in broad language that would have the same kind of ambiguities that have allowed the misinterpretations to which we object. The Constitution needs greater specificity, and if that takes more than 100 amendments, then that is was we need to develop and ratify.
Our proposals avoid all these mistakes, yet the various movement proponents seem unable to grasp why ours is the proper approach.

The standard model for such conventions would be for each state to decide how to appoint its delegates. Voting would be by state, with the vote of each state determined by a majority vote among its delegates. If appointed by state officials we can have some expectation of the composition from the partisan balances in each state. If appointed by governors, there are 30 Republicans, 19 Democrats, and one Independent. If appointed by legislatures, there are 27 Republican-controlled, 18 Democratic-controlled, 4 split, and one nonpartisan. However, if delegates are elected we might expect a breakdown that resembles the last election for the U.S. Senate, now at 54 Democrats to 45 Republicans, or the votes for president, for which 24 states went Republican and 26 went Democratic. None of these methods of selection promises to send delegates who have the skills needed to competently draft amendments to the U.S. Constitution, much less the concerns of the advocates for such amendments. It would more likely resemble a joint meeting of the Republican and Democratic national conventions trying to agree on a platform, and they don't do that very well even when they meet separately and have most of the work done in committees that meet for months before the convention.

The purpose of an Article V convention is to provide a way to develop proposals, especially if Congress is reluctant or unable to do so, but as we have seen from all the proposals developed at conventions of all kinds, they are simply not forums that are competent to do the difficult work of developing sound proposals. The appropriate forums are gatherings of experts on particular departures from constitutional compliance by courts, that can specialize on developing one or a few specific proposals. Those would not be official Article V conventions, but privately convened special conventions, perhaps a series of several on each issue, conducted over a period of years, with public comment between sessions. Only after the proposals are thoroughly worked out, and perhaps tested at the state level, should a movement seek to get each of several state conventions to support the exact private proposals, with no changes, and demand Congress adopt them, again with no changes, as proposals to be submitted back to the states for final ratification.

There is no role in this process for an Article V convention. If private gatherings can develop the language of proposals, there would be no need for one. All the work for one would already be done. That is the way we need to seek amendments.

How an Article V convention might go terribly wrong

Can such a convention be instructed or controlled once it convenes? No. There is no enforcement process for any controls. Consider the following scenario:
  1. Convention meets in secret
  2. It proposes entire new constitution which contains no rights or restrictions on governmental powers
  3. The proposal promises large benefits to every citizen or resident of the country, such as a minimum income of $100,000 a year (which would be impossible, but most people won't know that).
  4. It declares it will go into effect when ratified by a national referendum of citizens (or perhaps even non-citizens)
  5. A majority votes for it (and if they do how will anyone overcome that?)
  6. Ruling class use the new government to solidify their control, make everyone dependent on them, suppress all dissent as "terrorism"


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