Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 6) – Guest Essayist: David Eastman
Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. This series now concludes by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints today; issue-based legislative accountability, and the calling of a convention of states to amend the United States Constitution.
A Convention for Our Time
When we survey the Constitution today, it is increasingly difficult to picture it as the splendid banner raised by Washington and his fellow delegates at the Constitutional Convention of 1787. Nor does it today call to mind the iron chains described by Thomas Jefferson when he spoke of binding men down from mischief “by the chains of the Constitution.” Instead, the Constitution hangs frayed and tattered today, a silent witness to more than two centuries of flying above our nation’s capital. Its form has changed very little since 1787, but much of the life has gone out of it. Some today have begun to ask if it isn’t time for another convention—and in no state is this idea greeted with greater enthusiasm than here in Alaska. Holding a convention would open the door to a whole series of amendments, which could add new thread to a tattered banner, and in so doing breathe new life into the Constitution. Even so, when the idea of a second convention first began to gain traction in 1788, James Madison argued that the timing of any future conventions should be chosen only with great care. Whether the timing is right for another convention is an important question, and one to which any serious student of the Constitution should give careful consideration.
On November 4th of this past year, Republicans won majorities in more state legislative bodies than at any time in American history, including the Civil War. In total, voters handed Republicans control of 69 out of 98 chambers; more than 70% of all state legislative chambers nationwide. Republicans are now in complete control of the lawmaking process in 23 states, more than three times as many as Democrats control. This historic shift has created opportunities for Republicans that would have been unthinkable only a decade ago, and has spurred legislators in Alaska and other Republican states to think seriously about the prospect of making fundamental changes to the Constitution and the power of the federal government.
One proposal that has found support in Alaska is The Compact for America, a formal agreement between states to begin the process of adding a balanced budget amendment to the Constitution. This proposal takes advantage of a little known passage in the Constitution that allows state legislatures to initiate a constitutional amendment that would have the same effect as if the amendment had been passed by Congress. The passage is found in Article V of the Constitution.
Interestingly, in the initial draft of the Constitution this was the only method by which the Constitution could later be amended. During the Constitutional Convention, Alexander Hamilton argued that the power to initiate amendments to the Constitution should be given to Congress. In the end a compromise was achieved whereby an amendment could be initiated either by Congress acting on its own volition or by Congress acting on the request of two-thirds of the state legislatures, with subsequent approval required from three-fourths of the states in order for an amendment to become official.
On the last day of the convention before the Constitution was signed, George Mason cautioned that both options left the states at the mercy of Congress, which could frustrate any effort to pass an amendment that attempted to further limit its power. In response, delegates from Pennsylvania and Massachusetts proposed that any amendment initiated by the states would trigger Congress to call a convention for proposing amendments, and this method was inserted into the Constitution in place of two thirds of the legislatures themselves authoring an amendment. Once the vote was taken, James Madison couldn’t help pointing out that, other than opening the door to all of the ambiguities involved in holding a convention, the change had had very little effect, as the process still relied upon Congress to invite the states to a convention. The argument that Congress would never act to limit its own power has been fairly proved by history. Not since the bill of rights was passed by Congress in 1789, has Congress added an amendment to the Constitution that served the purpose of limiting its own power. And of course it has never invited states to attend a convention. But perhaps, given the unique circumstances the nation finds itself in today, with Republicans in control of 70% of state legislative bodies, and both chambers of Congress, it will soon do so. Has the time now come to amend the Constitution?
Looking through the writings of the Founders one would be hard pressed to find a single person who considered the Constitution a perfect document. Even “The Father of the Constitution”, James Madison, wished that the convention had made additional changes before signing it, and fully expected that some of the changes he desired would be made over time through the amendment process. Accordingly, it would be a very grave mistake to consider someone who desires to amend the Constitution as an opponent or enemy of the Constitution itself. Remembering the words of Washington, the customary weapon used to destroy free governments is not the amendment process itself, but rather amendments accomplished through usurpation or designed in their nature to undermine the Constitution.
Let us assume for a moment that Congress will call a convention once the Compact for America, or the Convention of States, or those supporting the Countermand Amendment, or one of the various similar projects, have succeeded in prevailing upon the requisite number of state legislatures to request a convention. Once this hurdle is reached, what will happen? As James Madison remarked during the Constitutional Convention, since the convention method was inserted into the Constitution on the last formal day of debate and discussion prior to signing, the document itself is noticeably lacking in details on how a convention should be called and, once called, how it should operate.
Much has been made of this silence, and of the uncertainty that would accompany the calling of any of the aforementioned conventions. However, there are other aspects of amending the Constitution through the convention process that have received little to no attention, and which weigh heavily on the role a convention should play in efforts to rejuvenate and breathe life back into the Constitution. One thing is certain, the topic of a convention has captured the imagination and enthusiasm of many today, and without that enthusiasm it is difficult to see how any plan to restore the Constitution can succeed. A second thing is certain, namely, that very few of those who are laboring on behalf of a convention have had the opportunity to attend or participate in one. For the majority of Americans who have not had the privilege of attending a convention, let us briefly revisit the two most recent conventions, sponsored and financed in large part by the federal government, at which decisions of critical importance to our nation were decided.
A Brief Glimpse at National Conventions
Nothing beats being there in person, but live video is a close second. So let us travel briefly to a scene from the most recent Democratic National Convention, held on September 5th, 2012. Truly, words can’t capture the experience; this 4-minute clip from C-SPAN, particularly the second half, is a must-watch in order to picture in your mind something of what a convention would be like.
By way of background, the national convention of any organization is the one moment in an organization’s existence when those who hold the decision-making power within the organization are all gathered together in one place. In the case of the Republican and Democratic National Conventions, elections are first held in local neighborhoods. Those elected often then go on to county elections and then regional elections. In each case, the number of elected convention delegates grows smaller and smaller. The final step before a national convention will be the holding of state conventions in all fifty states and U.S. territories, where delegates are elected to represent their state or territory at the national convention. When delegates from each of the fifty states meet at the national convention, the future of the organization is laid on the table. It is the one time that the organization can re-imagine itself. If the delegates at a national convention wanted to change the name of the Democratic Party to the Progressive Rainbow Party, and their mascot from a donkey to a giraffe, they could do so. They need permission from no one, as collectively they are the ultimate decision-maker within the organization. Once the convention has concluded, the organization returns to being governed by its policies and bylaws as before. But during the convention, the delegates assembled may amend those bylaws, or vote to replace them entirely, as they see fit. At least, that’s what the Charter and Bylaws of the organization say should happen.
If you watched the clip above, you will notice that that’s not what happened. On September 5th, the delegates at the Democratic National Convention voted to change the position of their party with respect to removing God from their platform and no longer recognizing Jerusalem as the capital of Israel. They voted four times; first in committee, and three times on the floor of the convention. The votes were expunged from the record, and the Democratic Platform stands today as though they had never taken place.
But wait, how can someone ignore the votes of the duly-elected delegates, who would do that? Welcome to the state of our union and the integrity of our current political convention process. When the delegates vote, it may be counted—or it may not be. Was this an informal gathering around a backyard barbeque? No, this was the official national convention at which the next president and vice president of our country were selected by the delegates in attendance. The two men who conspired to override the votes of more than 5,000 delegates were a former state governor and the mayor of the second largest city in the nation (who also happens to now be the national co-chairman for Hillary Clinton’s Presidential Campaign). The federal government spent $136 million supporting the official Republican and Democratic National Conventions in 2012 because they were believed to be that important to the future of the country. Lest I leave the impression that the Democratic National Convention is the only convention that operates in this manner, let us remember what took place at the most recent Republican National Convention that was held exactly one week before the Democratic National Convention.
Not only do the national conventions decide who will be on the ballot for president and vice-president, they also decide how presidential nominees and their running mates will be chosen in future elections. At the 2012 Republican National Convention, fundamental changes were made to the process of selecting future Republican presidential nominees. The changes were very controversial at the time, as they would almost certainly have prevented Ronald Reagan from ever being elected president as a Republican if they had existed when he first ran for president in 1976.
The changes themselves are having a profound effect on the 2016 presidential election, but of much greater importance to the present topic is the manner in which those changes were made. Delegates were told that they would not be able to enter the convention grounds except by bus for security reasons. When it came time to vote on the changes in committee, the leaders of the opposition were not permitted to attend the vote because their bus driver refused to take them to the convention. After their bus arrived an hour late to pick them up, the delegates from the State of Virginia were driven around the city for 45 minutes, entering and then exiting the convention’s security gates three times. In the end, the delegates demanded to be let off the bus and walked to the convention, but were unable to arrive in time for the vote. When it came time for more than 2,000 delegates to vote on the changes, their votes were ignored and those filming the convention noted that the official convention teleprompter had already determined in advance that their votes would be ignored.
A Return to Parchment Barriers
Earlier in this series we recalled James Madison’s refusal (in Federalist #48) to place trust in written laws (“parchment barriers”) alone to constrain the functioning of government. We also recalled Alexander Hamilton’s observation in Federalist #25 that nations quite naturally ignore written laws when those laws run counter to the necessities of society. Laws and Constitutions alone, like minefields and barbed wire, are not enough to stop a determined enemy from advancing. However, they can play an important part in turning an enemy back if they are carefully guarded by citizens committed to their defense. But what of conventions? If even laws cannot keep back a determined foe, how much less should we trust to customs and political processes to do what even the law itself could not?
As a rule, the courts abstain from resolving political questions, so the delegates who were disenfranchised at the Republican and Democratic National Conventions quite literally had nowhere to turn and no one who could aid them in correcting the injustice that they witnessed. Political problems, in this sense, often require political solutions. The Alien and Sedition Acts were not repudiated by the courts, but rather by the people themselves in the next election. However, even if the courts were disposed to take an active role in resolving any controversies that might attend a future Article V convention, there is still a problem. We are told that one of the reasons to call a convention today is the fact that the courts have proven to be so ineffectual at maintaining constitutional limits. In such a setting as this, do we really believe that the courts will actively guard the integrity of the convention process? If the iron strength of the Constitution and the concrete nature of laws are insufficient to limit federal overreach today, on what basis do we look with hope to the plastic flexibility of a political process?
And yet, as we presumed with Congress, let us also presume that the courts will likewise play a constructive and helpful part in the convention process. What then? The Achilles heel of the convention of states project is that the process of pursuing constitutional amendments by way of a convention is, while constitutionally prescribed, primarily a political process. Legislators are to vote on whether or not to call a convention. Members of Congress are to determine that enough state legislatures have done so. Delegates are to be elected. They are to cast votes at a convention. From start to finish, the process will be a political one. And yet, as Professor Laurence Tribe has so eloquently pointed out:
“But it seems to me that the very thing that is said to make a convention essential is the supposed failure of our political process; its polarization; its paralysis; its capture by special interests. And to rely on that supposedly failed process in order to provide a backstop so that putting the whole Constitution on the table up for grabs is a good idea at this point in our history seems to me to be—to sort of live in two different worlds at once. One world that says ordinary politics has totally broken down, and we can’t trust it. And the other world that says we can trust ordinary politics in order to make it a safe bet to put the Constitution on the table up for grabs.” (Excerpt at 1:04:37)
Proponents of holding a convention have sought to mitigate this concern by taking every possible step to make it a legal process, rather than a political one. And yet, if their claims are true, they have now created a legal process that will effectively silence that portion of the country that has been so successful in both the political and judicial arenas at converting or co-opting our nation’s institutions in furtherance of the progressive agenda. In fact, they purport to have been so successful in this that it ignores progressive objections to their project entirely.
The Convention of States website lists more than a dozen articles written in response to opponents of a convention. However, the articles listed do not respond to Hawaii legislators calling for a convention to repeal the second amendment, or legislators in California, Illinois, New Jersey and Vermont who have already requested that Congress call a convention to overturn the Supreme Court case Citizens United. In fact, their arguments today are focused entirely against those with whom they claim to have general agreement on long-term goals, and are silent when it comes to those with whom they disagree. In overstating their case regarding the risks of a convention, they undermine perhaps the strongest argument for a convention; namely, that the process of carrying a convention through to a successful conclusion will require building and organizing sufficient political strength and will to be able to meet the opposition in political battle on their own terms.
The process of amending the Constitution was designed to be difficult, and the convention path does not avoid that. If anything, the convention path was expected to be even more difficult, because the political nature of the process would naturally give pause to any faction or group of states who could start the process, but lacked the political strength to follow it through to completion. Starting the convention process in many respects requires the least political muscle. Following that process through to the successful election of delegates in all parts of the country, maintaining accountability of those delegates at a convention, ratifying any proposals in three quarters of the states, and then being able to compel enforcement of any new constitutional provisions—now that requires political strength. If we lack that strength today, why should we suppose that we will be in possession of it when it comes time to elect delegates and the opposition invests hundreds of millions of dollars in frustrating any effort to rollback the power of the federal government? In such a case is it not at least plausible, perhaps even probable, that the opposition will win a majority of delegate elections, as they have managed to win a majority of Congress? Should that transpire, we would no longer be looking merely at the “nuclear option” of amending the Constitution. It is all too likely that in the political upheaval that would follow, the convention process would come to be referred to as the “singularity option”, never again to be tried.
But What of the Founders
Those advocating amending the Constitution today, especially by way of the convention process, put much weight on the notion that the Framers of the Constitution would give applause to their project if they were but here to observe it. Indeed much has been made of a statement made by Madison that ‘if the absence of a provision in the Constitution permitting state nullification were to be found not to secure the government and the rights of the states, the final constitutional resort would be to amend the constitution.’ This, they argue, demonstrates Madison’s support for amending the Constitution to compel adherence to it. It is a presumption that bears neither the weight of Madison’s writings nor the writings of the Framers.
In 1788, less than a year after the first convention, Madison wrote that he ‘should tremble at the result’ if a second convention were to be held at that time. Writing in Federalist #49, he offered still further reasons to oppose conventions, not the least of which was the nature of those who would be selected to attend a future convention:
“The same influence which had gained them an election into the [Congress], would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned.”
Supreme Court Justice Antonin Scalia echoed his concerns recently in saying that he certainly “would not want a constitutional convention” and that “this is not a good century to write a constitution.” While neither man opposed the concept of a convention at some point in American history, each resolutely objected to holding one at the time that they were asked for their thoughts on having one. One thing that the Convention of States project does get right is its recognition of the underlying cause of our present constitutional crisis. When they discuss accountability they conclude by saying: “The problem is not the politicians, but the citizens of your state for not holding your state legislators accountable to you, the PEOPLE!”
On this they have strong support from the Framers. In Federalist #57, Madison explains that, of all the various means available to prevent government degeneracy, elections are the single most effective:
“The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.”
To reinforce this point, in Federalist 44, he prescribes the cure for our present predicament:
“If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.
And in the final installment of this series we will consider a much less publicized, but much more practical approach to restoring deference to the Constitution at all levels of government.
David Eastman is a graduate of West Point and a former Captain in the US Army. He has served at all levels of government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of future generations of Alaskans. He lives with his family in Wasilla, Alaska.
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