Fact Checking the Convention of States

Fiction: The Constitution must be amended in order to rein in Federal activist judges.

Fact: The Constitution already has built-in checks and balances for activist judges:

  • Judges only hold their offices “during good behavior” (Article III, Section I). “Good behavior” is undefined in the Constitution, but in the past Congress has impeached and removed judges for offenses varying in degree from judicial activism to drunkenness. These powers of impeachment, in other words, are very broad and entirely under the control of Congress.
  • The entire federal court system can be disbanded or restructured by Congress. The Constitution only mandates that Congress establish a Supreme court. The Supreme Court structure, as well as the creation and authority of inferior federal courts, is entirely at the discretion of Congress (Article III, Section I). As Congressman Steve King put it, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle.”
  • Congress can remove issues from the purview of the courts. With the exception of the “original jurisdiction” areas specified by the Constitution, Congress can regulate or limit the Supreme Court’s jurisdiction. This is known as “judicial stripping” and has been exercised by Congress on a number of occasions throughout history. A recent example of judicial stripping is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which (among other things) stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization Service decisions.

Fiction: Amending the Constitution will impose binding restraints on the federal government.

Fact: The federal government was given 18 enumerated powers in the Constitution, and specifically reserves everything else to the states. However, the powers-that-be in Washington D.C. routinely overstep all those boundaries.

Soo….since they won’t follow what we’ve got, we’ll tweak it and hope it will “take” this time? As the old saying goes, if it ain’t broke, don’t fix it. Fixing the thing that ain’t broke won’t fix the thing that is broke.

Fiction: A Convention of States is the Founding Fathers’ solution to misuses of federal power.

Fact: There’s no single solution the Founders put forward as the silver bullet. They gave us a number of ways to rein in the government, and the correct solution depends on the situation.

However, the Founders were very clear that drastic measures should be taken only in desperate circumstances. As they said in the Declaration of Independence:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

Here’s how Patrick Henry described their approach to British tyranny:

Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament.….

And they did those things for years.

The significant thing about that approach is that the colonists had no legal recourse whatever. They were completely unrepresented in the British government. Even so, they made absolutely certain there was no other way out before they resorted to the drastic measures of changing their government.

Our situation is different. The Founders saw to it that we had numerous ways to influence our government, and if their own example is any indication, they wouldn’t look kindly on an attempt to change the Constitution when we haven’t made proper use of the other tools at our disposal.

Fiction: States will control the procedures of an Article V Convention, including delegate selection and procedural rules.

Fact: This is nowhere in Article V of the Constitution. What Article V says is that “The Congress….shall call a convention for proposing amendments[.]” That’s it. Nothing about who determines how delegates are selected or what the procedural rules will be.

So, the convention details are left up to the entity that calls the convention: Congress. States have no grounds whatever to claim a say in those details.

Fiction: There is no historical precedent for a runaway convention.

Fact: A runaway convention is what produced the Constitution in the first place.

The delegates to the first Constitutional Convention in 1787 were not authorized to develop a Constitution binding 13 independent states into a united country. The states had only authorized their delegates to revise the Articles of Confederation that bound the states to an alliance.

The Founding Fathers stepped outside their bounds and produced a Constitution that was unasked for, unauthorized, stripped the states of their independence, and created a Federal government with unprecedented power since our independence from Great Britain.

As it turned out, it was okay that time, because it was the Constitution we needed.

Will we be so lucky again? Take one look at the kind of politicians that comprise Congress and the state legislators. Are these the guys you trust with a runaway convention? Because if we have another convention, history will repeat itself.

Fiction: States may call for an Article V Convention that is limited in subject matter scope.

Fact: In the first place, the Constitution doesn’t authorize limits on the convention. All Article V says is that Congress “shall call a convention for proposing amendments”. As long as the convention is indeed considering amendments to the Constitution, it is authorized by the Constitution.

In the second place, even if the Constitution did create subject limiting mechanisms, there is no way to enforce those limitations. The states DID put limits on the Constitutional Convention of 1787: the delegates were only authorized to amend the Articles of Confederation. Instead, the delegates completely scrapped the Articles and replaced them with an entirely new Constitution. If it happened then, it could happen again.

Fiction: The amendment ratification process is an adequate safeguard to block radical amendments, i.e. the people of the United States may be trusted to protect their own liberties.

Fact: It takes 38 state legislatures OR 38 state conventions to pass an amendment to the Constitution.

Getting both houses of the legislative bodies in 38 states to pass an amendment isn’t impossible. However, if the amendments favored by Washington would be difficult to get through 38 state legislatures, Congress has the option to choose the ratification-by-convention method.

Why would Congress opt for ratification by convention? Because conventions can be controlled. The state GOP conventions are an excellent example of how easy it is for a small group of people to pre-determine the convention outcome and keep control of the convention to ensure that outcome.

This is exactly how the Prohibition Amendment was repealed in 1933. Washington politicians were concerned that state legislators wouldn’t be able to buck the temperance supporters by voting to repeal (in plain English, Congress was concerned that the state legislators would listen to their constituents). So, Congress opted to ratify the 18th Amendment by state conventions. It worked, and the rest is history.