Martin Dyckman: Be wary of plans for a constitutional convention

 There could be no worse prospect than a convention to revise the U.S. Constitution, nor any worse news than the people promoting such a bad idea are members of what Hillary Clinton famously coined a vast right-wing conspiracy.

The purported object is to pass amendments to limit federal power, term-limit Congress, require a balanced budget and perhaps much more.

It’s an assault on the Constitution itself.

Some of the people who are thumping that tub also want to write the Supreme Court’s hideously erroneous Citizens United decision into constitutional stone, and allow the Congress to override court decisions in the same manner as presidential vetoes.

Some even propose to have the gerrymandered legislatures, rather than the voters, elect the U.S. Senate once again.

None of these schemes could attract the two-thirds votes, in House and Senate, that are necessary to send amendments to the states for ratification.

But some who dream wildly believe that a convention would do what the Congress won’t.

That idea is so bad that it has never become a serious threat. Legislatures that called for a convention usually sobered up and rescinded their resolutions.

They did so because — despite claims to the contrary — there’s no guarantee that a convention could be held to any specified purpose.

“(T)here is no effective way to limit or muzzle the actions of a Constitutional Convention,” former Chief Justice Warren Burger wrote in 1988, while he was chairing the bicentennial commission on the Constitution.

“The convention could make its rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey.”

The only precedent, as Burger noted, was the convention that wrote the Constitution in 1787. It ignored its instructions from the Confederation Congress to do nothing but revise the plainly ineffective Articles of Confederation. Nothing more was heard of the Articles of Confederation.

The Constitution provides only two means of amendment. One is for the Congress to propose amendments by supermajority vote. Twenty-eight have resulted. The other says that on application of two thirds of the states (which now means 34) the Congress “shall” call a convention. As with amendments proposed by Congress, the convention’s amendments would be valid when ratified by three-fourths (38) of the states, either by their legislatures or by state conventions — a choice left to Congress.

Other than that choice, however, there is nothing to guide the Congress or the states as to how to proceed with a convention.

Would each state, large or small, have a single equal vote, as in 1787? Would the delegates be elected or hand-picked by the legislatures? Would the process become a right-wing (or left-wing) coup?

The current engine behind this conspiracy is a familiar suspect: The American Legislative Exchange Council known as ALEC.

ALEC is the Typhoid Mary of bad policy. The stand-your-ground virus, originating in Florida, is the most notorious example.

Coinciding with ALEC’s annual meeting in Washington this month, nearly 100 state legislators met separately at Mount Vernon to brainstorm a convention. ALEC disclaimed responsibility, but its web site features an extensive how-to manual that dismisses the possibility of a runaway convention.

Ominously, the Mount Vernon meeting was closed to the public and press.

Among those attending, according to the Florida blog BizPac Review, was State Sen. Alan Hayes, R-Umatilla. Hayes has filed legislation (Senate Memorial 476) calling on Congress for a convention to “impose fiscal restraints” on the federal government, “limit the power and jurisdiction of the Federal Government,” and “limit the terms of office for federal officials and members of Congress.”

Broad as those topics are, Hayes’ memorial purports to be self-cancelling should the Convention go beyond them. But, as Burger argued in 1988, “After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.”

There is no immutable problem in the Constitution except the requirement of two senators for each state, which is the one provision that can’t be amended. Whatever else appears to be wrong could and should be resolved by electing members of Congress committed to making it work in the spirit of 1787.

The radicals plotting against the Constitution don’t reflect that sort of cooperative spirit. They want everything their way.

Martin Dyckman


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