Is it time for a new Constitutional Convention?
A recent proposal for a new federal Constitutional Convention in Ohio failed, but another is now being considered in Virginia. While some people, rightfully concerned with the multi-billion dollar “bailout” of private companies and huge financial institutions by the U.S. Congress want to amend the United States Constitution to require a balanced budget, others, with entirely different motives, would like nothing more than to rewrite that document altogether.
I, too, share concern for the late action of Congress to give away taxpayer money to privately owned businesses, because such measures are without any justification under the Constitution already. And the prospect of powerful special-interest groups having anything to do with writing a new constitution should frighten anyone who loves the liberty we have enjoyed for over 220 years under our present form of government.
A brief review of the history of our Constitution will better explain my concern. Following the Declaration of Independence from Great Britain in 1776, delegates from the 13 original colonies drafted the Articles of Confederation to govern our new nation. But after the war for independence, many recognized that the Articles were simply too weak to maintain a strong union, and a Constitutional Convention was proposed. Prior to the first meeting of that convention in Philadelphia in 1787, George Washington, who was elected as convention president, expressed his desire to form an enduring constitution:
Let us raise a standard to which the wise and honest can repair. The event is in the hand of God.
A belief in God and in those rights and liberties given by God were secured in the first 10 amendments, which we know as our Bill of Rights. Freedom to worship God as well as freedom of speech, press and right of the people to assemble and petition the government for redress of grievances were enshrined in the First Amendment. Others such as the right to keep and bear arms, trial by jury, and the prohibition of cruel and unusual punishment soon followed. Careful to protect other rights not mentioned, the Ninth Amendment provided that the enumeration of certain rights should “not be construed to deny or disparage others retained by the people.”
Those who drafted our Constitution also knew that man had a fallen nature and would eventually succumb to power; therefore, they limited the power of the new federal government by dividing those powers into three separate but equal branches. A system of checks and balances was crafted to ensure that no branch would ever assume ultimate authority. Finally, the 10th Amendment stated that all “powers not delegated to the United States by the Constitution nor prohibited by it to the States [would be] reserved to the States respectively or to the people.”
Provision for amending the Constitution and calling a new convention to consider amendments to the Constitution by two-thirds resolution of the states were added to Article V. However, procedures for changing the Constitution were made intentionally difficult so that the new Constitution would not be undermined by a simple majority of the states or a combination of factions. Only 17 amendments have been added after the Bill of Rights in 1791.
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Throughout our history, many have warned of the dangers of a new Constitutional Convention. One of the first to recognize the perils of another Constitutional Convention was James Madison, the acknowledged “Father of the Constitution,” who warned:
Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second. …
As recently as 1987, former Chief Justice Warren Burger, chairman of the U.S. Bicentennial Commission, commented on the prospects of another convention by stating:
There is no way, any more than the Continental Congress could control the convention in Philadelphia, to put a muzzle on a Constitutional Convention. Once it meets, it will do whatever the majority wants to do. I would not favor it. (emphasis added)
Chief Justice Burger was right. A new convention raises all sorts of frightening possibilities. Would valuable rights like the right to keep and bear arms or the right to worship God be kept intact? How would delegates be chosen? Would limitations on federal power remain? What would stop powerful special-interest groups from influencing the outcome? These are only a few of the questions Article V does not address and which remain to be answered. Even though Congress tried to address some of these questions in 1993, there is no guarantee that that legislation would be held constitutional or would apply to a convention today.
Professor Laurence Tribe of Harvard is one of the most liberal of constitutional scholars and someone with whom I rarely agree. But on the issue of another Constitutional Convention, I think he is entirely correct when he stated:
An Article V convention … would today provoke controversy and debate unparalleled in recent constitutional history. For the device is shrouded in legal mysteries of the most fundamental sort, mysteries yielding to no ready mechanism of solution.
But it is not really a “legal myster(y) of the most fundamental sort,” as Laurence Tribe suggests, just simple logic. Few people today have a full understanding and appreciation of natural rights, the fallen nature of man, or the system of separation of powers and checks and balances our forefathers envisioned.
I believe that we should strongly resist efforts to call another constitutional convention. After all, if we can’t follow the Constitution we have, what would be gained by another?
Or – even more importantly – what would be lost?
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