Is a constitutional convention a dangerous idea? | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    The Beaufort County Board of Commissioners, on January 18, 2013, adopted a resolution calling for a constitutional convention to strengthen the Second and Tenth Amendments, among other things. According to Commissioner Hood Richardson, who was instrumental in drafting the resolution that was ultimately adopted by a majority of the board, considerable thought went into the decision whether to include a call for a constitutional convention.

    "We debated it and did quite a bit of research. Some of us were very concerned about the possibility of a 'rogue' convention that tampered inappropriately with the Constitution, but we ultimately came to two conclusions which resulted in the inclusion of this provision in the resolution. First we have a high level of satisfaction that the ratification process (3/4 of the state legislatures) would protect against unwise amendments being ratified and secondly, we think there is value in a vigorous debate, whether any amendments are ultimately ratified or whether or not there is even a convention called. So I'm not worried about a rogue convention."

    Article V of the U. S. Constitution provides:

    The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

    The constitutional convention method of amending the U. S. Constitution has never been used, since the original convention. All amendments, and proposed amends that failed, have used the legislative option in Article V. So there is no settled law about how Article V would be applied to any set of facts in proposing an amendment as called for in the Beaufort County resolution.

    Having said that, one might reason that the surest safeguard against a rogue convention even considering or proposing expansive changes to the current constitution would be in the drafting of an "application" for the call for a convention. Presumably, the application would be by concurrent resolutions being adopted by both houses of 38 state legislatures. Thus, the resolutions themselves would be the first instance of restraint.

    It would seem that the amending process would be subject to judicial review; meaning that it would most likely be challenged as to the process conforming to the Article V. Such review would therefore presumably follow the precedents set for legislative interpretation. One of those precedents would be the "plain meaning within the four corners" of the "application" or resolution. Therefore, the resolutions adopted by the state legislatures could in and of itself constrain the convention.

    On the other hand, to argue that simply convening a convention would mean that such a gathering could not be constrained defies logic and common sense. There is no precedent to support such an argument. And there is nothing in the plain meaning of the words in Article V to support such an argument.

    Since the operation of a constitutional convention would be based upon the application, it is logical to conclude that a convention would have only that authority granted to it by the concurrent application resolutions of at least 38 states. Even if some states added other provisions to their resolution it would be logical to assume that such "extra" provisions would not carry concurrence except by adoption of at least 38 states. Thus, there is no rational basis for arguing that a constitutional convention could not be constrained to propose only amendments specifically addressed in the application resolutions passed by at least 2/3 of the state legislatures.

    There is precedent for constraints being placed on proposed amendments. Some proposed amendments have been constrained as to the length of time allowed for ratification. If the proposing process, legislative or via convention, can be so constrained then it only follows that other constraints could be placed on the proposing and ratification, so long as they were not contradictory to the provisions contained in Article V.

    Moreover, the idea that the amending process can be constrained is found within Article V itself. It specifically restricted certain amendments for a prescribed period of time (until 1808) that related to specific provisions of the original document.

    Once convened, it might be argued, the greatest constraint on the convention would be the fact that it only proposes. It does not ratify. Any reasonable person would therefore realize that the convention delegates would suffer a self-imposed constraint via the knowledge that if they propose something unacceptable to ¾ of the states that its actions would be moot.

    No doubt, our Founding Fathers were wise enough to foresee the possibility of a rogue convention and that is precisely why they applied, as they did with other facets of the governance structure they created, the concept of a "balance of powers." To argue that a convention of delegates could unilaterally decide whatever they wanted is nonsense and contrary to the very conceptual framework of our constitutional republic.

    If history is a predictor of future action, one would presume that a ground-swell of public opinion to "strengthen the Second and Tenth" amendments, as called for in the Beaufort resolution would actually result in Congress acting...either to propose specific amendments or to adopt statutory corrective measures, which while not being as strong as constitutional provisions would at least move the current situation to the right. The same could be said for judicial decisions of the Supreme Court. History suggests that the justices on the Supreme Court do gauge public sentiments undergirding fundamental issues. The history of school desegregation cases exhibits this fact, as does the court shift when Franklin Roosevelt began a discussion about changing the number of justices on the Supreme Court. Thus, the idea of a debate on convening a constitutional convention would probably result in there no longer even being a need for such.

    All things considered it would appear that the Beaufort County Commissioners were right on target with the way they worded their resolution (a constrained convention) and with the idea of provoking a debate that is likely to have broad and deep public support. In fact, the ingredients may just be here something to happen.

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