Former Attorney General Ken Cuccinelli’s newsletter arrived in the email last night and its topic is a series of General Assembly resolutions that would, if approved, put Virginia on record as calling for a constitutional convention.
In this case, it’s termed a “convention of the states.” Or “an Article V convention of the states.” All accurate. But the common term is “con-con,” the short hand used to rally the right into opposing the idea as a dangerous attempt by naive people into opening the Constitution’s delicate innards to the plots and wiles of the left.
It always worked.
The attempt this time is to get states to make limited convention calls. Virginia’s HJ 497, for example, would limit any convention to “proposing amendments to the United States Constitution that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”
On its face, it looks like a balanced budget amendment, term limits (but not just for Congress) and an open-ended idea that would appear to want to put the 10th Amendment in all caps. Or something.
This bill has passed the House Rules committee — an action that Speaker Bill Howell’s team took the time to announce in a press release. Amazing what a primary challenge can do…
Is it a good idea? I don’t doubt the sincerity of those who back the idea. There is genuine frustration — and not just on the right — with the way the federal government conducts itself. We can see that it spends too much and very often does too much. A charge that is as old as the Constitution itself is that the federal government pays no heed to the limits placed upon its power. Its growth, intrusiveness and cost have been codified by Congresses more interested in re-election than governing and sanctified by a court system that has become distant and unaccountable.
None of these are new arguments, either. If anything, they have become tame by historical standards.
But the very real sense that something must be done and the only way to do it is through a second constitutional convention is back. Again. What to make of it?
George Will, who supports the idea that a convention needs to be called and that such a meeting could be limited to a single topic through a state compact that would establish clear rules in advance, offers this mild warning:
Many prudent people — remembering that the 1787 Constitutional Convention’s original purpose was merely to “remedy defects” of the Articles of Confederation — recoil from the possibility of a runaway convention and the certainty that James Madison would not be there to make it turn out well.
This leads to my ambivalence to the idea of a limited convention, a “convention of the states,” or whatever one prefers to call it.
We have had one national convention. It exceeded its mandate and compounded that by requiring ratification by conventions of the people — not state legislatures. We are fortunate that they did.
Would a new convention follow the same path as the first? Would restrictions on its mandate prevent a wholesale re-write…the dreaded runaway convention? No one knows for sure.
I understand, sympathize with and, in the past, have worked for the idea of a constitutional convention…limited to a single task. I’m not convinced it can be, even though people I respect say it can, while others are sure it can’t.
Regardless of the fate of Virginia’s particular convention call, its real usefulness lies elsewhere:
It’s unlikely — though not impossible — that a convention would ever be convened. Mr. Barnett points out that other convention calls, when they got close to passing through the states, spurred Congress to act to avoid a convention. This is what happened with direct election of senators 100 years ago. Kickstarting the reform process and demonstrating widespread public support for reforms might get Congress off its duff.
There are those who will contend that this earlier convention threat resulted in an unmitigated disaster for the states.
But a convention call also starts a conversation. What should be changed? Are we looking for new amendments only, or are we also ready to rewrite existing ones? Both, perhaps? Virginia’s call has a conservative bent. Will other states agree to that, or will they sent entirely different agendas? Who then decides what constitutes a legitimate convention call, if they are all slightly different?
Who will write these proposed amendments and how will the delegates be chosen? Would the deliberations be secret, or would all proceedings be public (Jemmy Madison with Twitter…there’s a thought). Would we prefer amendments be ratified by state legislatures, or state conventions?
If we’re serious about a constitutional convention, we have to ask such questions, and more. Let’s have a vigorous conversation about the possible benefits and pitfalls. And yes, let’s talk about the all-important mechanics of the thing.
Otherwise, we’re trusting in the very political class that has made such a mess of things to run the amending show.
