Op-Ed by Brian Almon, Gem State Chronicle Editor
In May 1775, representatives from twelve (later thirteen) British colonies in North America gathered for the Second Continental Congress to decide what to do about their deteriorating relationship with King George III of Great Britain. Out of this congress came the Declaration of Independence, victory in the American Revolution, and a new government under the Articles of Confederation.
In the years after the war ended, however, Americans began to realize that the Articles were insufficient for establishing a new nation out of thirteen separate states. The Congress of the Confederation authorized a new convention in Philadelphia tasked with proposing changes to the Articles. What happened next changed history forever.
Men from all thirteen states arrived in Philadelphia and soon decided to exceed their congressional mandate. Rather than presenting Congress with proposals to alter the Articles of Confederation, they instead drafted an entirely new constitution and presented it to the states for ratification.
The rest is history. Our Constitution has grounded and guided the development of the United States of America for nearly a quarter of a millennium. The Framers, learning from the fragility of the Articles of Confederation, created a built-in system for amending the new Constitution, which is laid out in Article V:
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.
Such a small section, yet Article V is the key to changing the Constitution. Since its ratification, the states have used it 27 times to amend the Constitution via congressional proposals. However, the second method—a convention called by Congress at the request of two-thirds of the states—has never occurred.
Some activists want to change that. A Texas-based organization called Convention of States (CoS) has been working to bring state legislators from throughout the nation on board with a plan to pass enough resolutions to force Congress to call an Article V convention. CoS wants to propose three amendments:
- Term limits for members of Congress
- A balanced budget requirement
- Restrictions on federal overreach
Here in Idaho, Rep. Jordan Redman (R–Rathdrum) has introduced two resolutions (HCR9 and HCR10) in pursuit of that goal, both of which will be presented in the House Judiciary, Rules, & Administration Committee at 1:30 p.m. MDT on Monday. One resolution lays out how the Legislature will choose delegates to the proposed convention while the other lays out the parameters of the convention itself.
CoS has been lobbying for states to adopt resolutions calling for an Article V convention for many years, deploying famous names such as former US Senator Rick Santorum and hosting mock conventions in which activists walk through what how they believe this convention would play out.
Proponents argue that a convention is necessary to address increasing federal debt, career politicians becoming disconnected from the people, and a century of massive federal overreach. Opponents, however, warn of the risks of a convention exceeding its stated mandate, potentially opening the door to amendments beyond those initially proposed. They also highlight the challenge of securing enough consensus among red, blue, and purple states to actually ratify any amendments.
Visit the CoS website to read the arguments in favor of calling a convention as they will explain their own positions better than I can. Here, I will explain my reasons for opposing it. First, I recommend reading these three articles from the Idaho Freedom Foundation by Ron Nate, Wayne Hoffman, and Fred Birnbaum. All three men argue that if states have enough willpower and political capital to call for a convention, then they already have the ability to address many issues, such as ending reliance on federal funding, without amending the Constitution. They also lay out several other compelling arguments against calling an Article V convention.
I also recommend this essay by David Super of the American Constitution Society, which is a well researched and well reasoned argument against many of the positions taken by advocates of an Article V convention.
CoS dismisses concerns about a convention potentially exceeding its mandate, confidently asserting that delegates would be strictly limited to specific proposals. However, there is no guarantee that Congress would so bind them. A resolution introduced in the previous Congress by Rep. Jodey Arrington of Texas calls for a convention without mandating that it be limited to certain subjects. Indeed, a strict reading of Article V suggests that only the convention itself has the authority to propose amendments, so it’s foolhardy to assume they would be irrevocably bound to any previous resolution.
Even more alarming is the historical precedent set by the original Constitutional Convention itself. Delegates in 1787 were instructed only to propose changes to the Articles of Confederation, yet they instead drafted an entirely new system of government. There is no way to predict what might happen if a new convention were convened. Those delegates bypassed the authority of the Congress of the Confederation by claiming to represent the people themselves; hence the first line of the Constitution is “We the people…”
Indeed, consider what happened in the Idaho House of Representatives last Friday. Majority Leader Jason Monks moved to suspend the rules so they could immediately consider House Bill 231 rather than waiting until the following week. Two-thirds of the body agreed, and so it was done. When a body of delegates gathers, they have enormous leeway in what they can do if enough members agree.
Another issue that I have not seen discussed much yet is that any potential convention would still be controlled by Congress. Go back and carefully read the text of Article V, making sure to keep your clauses straight:
The Congress… on the application of the legislatures of two thirds of the several states, shall call a convention…
This suggests that Congress, not the states, would ultimately oversee the process, meaning the carefully laid plans of CoS proponents might be irrelevant. For instance, many assume states would have equal representation, but Congress could instead allocate delegates proportionally, meaning California could have 100 delegates to Idaho’s five. The original Constitutional Convention gave each state one vote, but there is no guarantee a modern convention would follow the same rule.
Indeed, the text of HCR10 makes clear that Congress must call the convention — it cannot be convened spontaneously by the states:
The members of the First Regular Session of the Sixty-eighth Idaho Legislature, the House of Representatives and Senate concurring therein, as the Legislature of the State of Idaho, hereby apply to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states…
There is also no guarantee of who would be appointed to an Article V convention. HCR9 lays out the procedures that the Idaho Legislature would use to appoint delegates, however, there is nothing stopping Congress from using some other process. There is precedent for Congress to throw the states a curve ball. In 1933, Congress approved the Blaine Act, a joint resolution presenting the 21st Amendment, which would repeal Prohibition, for ratification. After passing the House, the Blaine Act was amended in the Senate to provide for ratification via state conventions rather than state legislatures, as some felt legislatures were too supportive of Prohibition.
There is nothing stopping Congress from crafting a resolution to call an Article V convention with a plan for selecting delegates that is different from Idaho’s resolution.
Article V states that two-thirds of the states can compel Congress to call a convention, meaning 34 states must pass some sort of resolution. However, any proposed amendment requires ratification from three-fourths of the states, which means 38. As of now, 23 states are fully controlled by Republicans, while 15 are fully controlled by Democrats. That means any proposed amendment would need to be ratified by every Republican state, every divided state, and at least three Democrat states. That seems unlikely to result in anything we would call a success.
You might argue that my concerns are speculative, and you would be right. But so are the supposed benefits of a convention. Proponents like CoS paint an idealistic picture without acknowledging potential downsides. They dismiss concerns as unfounded, yet history suggests caution. Remember that if a plan seems too good to be true, it probably is. You should approach CoS activists who claim that this plan is foolproof, with no potential unintended consequences, in the same manner as a snake oil salesman hawking a cure-all.
My biggest concern is simply the unpredictability of the entire idea. Our Constitution, while not perfect, has maintained a framework for our government for nearly 250 years. Opening it to alteration now, outside the congressional process that has been used in the past, seems fraught with peril. Remember, we live in a time when left-wing leaders such as former President Barack Obama have decried the Constitution, saying that instead of restrictions on government it should instead mandate what government must do for the people. Remember when whomever ran former President Joe Biden’s Twitter account tried to insert a new constitutional amendment simply by tweeting it into existence?
Opening up the Constitution would give these voices just as much influence in deciding how to amend it as ours—perhaps even more.
Perhaps the biggest reason I oppose calling an Article V convention is because it misses the point of our current crisis. The Constitution is only as strong as the political will to enforce it. Political philosopher Joseph de Maistre observed that constitutions reflect the beliefs of a people, not the other way around:
No constitution results from deliberation; the rights of the people are never written, or never except as simple declarations of pre-existing rights not written, of which nothing more can be said, than that they exist because they exist.
If we are no longer the “moral and religious people” that John Adams said were necessary to sustain our Constitution, how will amending it solve anything? What we need first is a revival of our people, a restoration of our culture. Conservatives agree that our government has ignored the Constitution for decades; how will adding new amendments fix a problem rooted in willful disregard for the existing ones?
I see calls for a constitutional convention as a Hail Mary in football: one last-ditch effort to save our country before it’s too late. Like in a football game, this is a high risk play for when all other hope is lost. However, I still believe our path forward is to continue doing the slow, tedious, and incremental work of reforming our government and returning to our principles. We aren’t going to fix the problems of the past century overnight.
Many of those in Idaho who support a constitutional convention are people I respect, and even consider friends. None of this is to disparage their earnest belief that this is a noble cause. I hope that I have provided some food for thought as Idaho lawmakers prepare to debate this important issue.
This op-ed was originally published here with Gem State Chronicle.
