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Alexander's Column
Constitutional Convention? Caveat Emptor
The Law of Unintended Consequences
By Mark Alexander ·
October 15, 2014
"The basis of our political systems is the right of the people to
make and to alter their Constitutions of Government. But the
Constitution, which at any time exists, ‘till changed by an explicit and
authentic act of the whole People, is sacredly obligatory upon all." --George Washington (1796)
The "law of unintended consequences" is an idiomatic admonition
regarding the manipulation of complex systems. The notion of
unintentional consequence has its origin with 18th-century political
economist Adam Smith and the Scottish Enlightenment.
In the present, it is used more in rebuttal to the hubristic notion
that humans are so brilliant and possess sufficient discernment about
complex systems that we can predict outcomes with great accuracy. It is
similar to Murphy's Law -- "Anything that can go wrong will go wrong" --
except it is not asserting the absolute.
20th-century sociologist Robert Merton noted three primary factors
contributing to unanticipated consequences: First, incomplete analysis
because it is impossible to anticipate all variables; second, errors in
analysis of what is known about the problem; third, immediate interests
overriding long-term interests.
Our nation is besieged by unintended consequences. Most notably, the 2008 election of a charismatic "community organizer"
peddling a "hope and change" mantra. It is now painfully clear, after
the re-election of Barack Obama, that his mantra has resulted in a plague of pessimism and an atrocious fundamental transformation of America.
But not all unanticipated consequences are bad.
Shortly after Obama's first election, a grassroots groundswell of concern over our government's abject disregard for the Constitution emerged. That concern galvanized in the Tea Party Movement, a broad coalition of Americans from all walks of life with a common goal of restoring
Constitutional Rule of Law and the Essential Liberty enshrined therein.
Fortunately, this movement is more ideological than political. While
the media labels some constitutional constructionists as "Tea Party
candidates," the underlying movement defies traditional political party
labels -- and this constitutional coalition is alive and well.
Beyond efforts to restore the plain language
authority of our Constitution by way of the ballot box, several
compelling arguments for constitutional amendments have emerged in an
effort to circumvent restoration by way of the bullet box.
There are two proscriptions for amending our Constitution. These are specified in Article V as ratified.
"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."
In other words, to amend our Constitution, two-thirds of the House
and Senate must adopt an amendment or two-thirds of state legislatures
(34) must request Congress convene an Article V Convention to consider
an amendment. Then, that amendment must be affirmed by either
three-fourths (38) of state legislatures or state conventions.
Since our Constitution was ratified and became operational on March
4, 1789, there have been approximately 11,600 amendment proposals, of
which 33 were adopted by Congress and sent to the states for
ratification. Of those, 26 amendments were ratified by state
legislatures and one, the 21st Amendment, which repealed the 18th
Amendment (prohibition on alcohol), was ratified by state conventions.
The most significant call on Congress to convene an Article V Convention in recent history was Ronald Reagan's
proposal for a Balanced Budget Amendment (as currently required by
every state constitution but Vermont). On March 26, 2014, Michigan's
legislature became the 22nd applying to Congress for an Article V
convention seeking a Balanced Budget Amendment.
What makes the Michigan request notable is that there already are 12
applications from other states for conventions to consider a Balanced
Budget Amendment. All were rescinded -- most because it was thought that
the Gramm-Rudman-Hollings Act negated the need for a Balanced Budget
Amendment. Of course, Congress created as many bypasses around
Gramm-Rudman as they have around the Constitution.
But there is a debate as to whether a state may rescind its Article V
application. Rep. Duncan Hunter (R-CA) has called on Speaker John
Boehner (R-OH) to seek a legal opinion on whether that threshold has
been met: "With the decision by Michigan lawmakers, it is important that
the House -- and those of us who support a Balanced Budget Amendment --
determine whether the necessary number of states have acted and what
the appropriate role of Congress should be in this case."
Indeed, that answer is being sought by quite a few constitutional scholars who are advocates of Article V Conventions, including Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley and Mark Levin.
Levin, who distributes our Essential Liberty Guides at conservative conferences, has generated substantial interest and support for 11 amendments he outlined in his book, "The Liberty Amendments: Restoring the American Republic."
He is calling for a national dialogue on these amendments, with the
ultimate objective of stopping unmitigated and unlawful violations of
our Constitution by the central government.
Conservative political analyst George Will is an advocate of another measure, The Compact for America, a Goldwater Institute initiative which, according to Will,
"would use the Constitution’s Article V to move the nation back toward
the limited government the Constitution’s Framers thought their document
guaranteed."
The Compact is a renewed federal budget containment measure, and as Will concludes, "In the 85th and final of the Federalist Papers
written to persuade Americans wary of centralized power to ratify the
Constitution, Alexander Hamilton said: 'We may safely rely on the
disposition of the state legislatures to erect barriers against the
encroachments of the national authority.' States would be the prime
movers of, and would be substantially empowered by, the institute’s
amendment-by-compact plan."
While we await a legal determination from Boehner on the question of
whether the 34-state threshold for an Article V Convention has been met,
there are two important considerations about which approach should be
taken to enact amendments.
First, it is not clear whether the scope of amendments to be
considered by a convention, once convened, can be limited. Could those
advocating statist tyranny commandeer a convention?
Recall, if you will, that on February 21, 1787, when the Congress of
the Confederation endorsed a measure to revise the Articles of
Confederation, it summoned state delegates "for the sole and express
purpose of revising the Articles of Confederation" in ways that, when
approved by Congress and the states, would "render the federal
constitution adequate to the exigencies of government and the
preservation of the Union." Indeed, Article 13 of the Articles of
Confederation set forth that it was "perpetual" until any alteration was
"agreed to in a Congress of the United States, and afterwards confirmed
by the legislatures of every State."
But the delegates to the original Constitutional Convention
determined that the Articles were not workable and proposed an entirely
new Constitution, in effect discarding the Articles of Confederation
without objection from the states. Fortunately, our Framers' objective
was to codify Liberty as "endowed by our creator," and as specified in our Declaration of Independence.
They believed that all who followed in the executive, legislative and
judicial branches of government, and those duly authorized thereunder,
would abide by their sacred oaths to Support and Defend" our Constitution.
According to Alexander Hamilton, "[T]he present Constitution is the
standard to which we are to cling. Under its banners, bona fide must we
combat our political foes -- rejecting all changes but through the
channel itself provides for amendments."
If that legal and moral obligation had been compliantly observed, this column would not even be necessary.
So what is the risk that such lawlessness would hijack an Article V
Convention, especially since, as James Madison questioned in his notes
on Article V ambiguities, "How was a Convention to be formed? By what
rule decide? What the force of its acts?" None of those questions are
answered in the Constitution.
Federalist Society constitutional expert Michael Stokes Paulsen,
Distinguished University Chair and Professor at St. Thomas School of
Law, argues that such a convention would have the "power to propose
anything it sees fit."
My colleague, Heritage Foundation constitutional scholar Matt Spaulding,
notes, "The largest question is whether an amendments convention can be
limited to specific amendments or even topics. The pro-convention
argument assumes that the power to limit the convention is inherent in
the power to call the convention in the first place. I’m not so sure
that follows: The text says that upon application of the states Congress
'shall call a Convention for proposing Amendments,' not for confirming a
particular amendment already written, approved, and proposed by state
legislatures (which would effectively turn the convention for proposing
amendments into a ratifying convention). Indeed, it is not at all clear
as a matter of constitutional construction (and doubtful in principle)
that the power of two-thirds of the states to issue applications for a
convention restricts, supersedes, or overrides the power of all the
states assembled in that convention to propose amendments to the
Constitution."
Thus, given the persuasive power of the Leftmedia and Democratic Party
conglomerate, their ability to advance populist measures for amendment
consideration could spell the end of what remains of our Constitution.
But the second consideration about which of the two approaches should
be taken to enact amendments is the overarching question of whether
either approach will matter in the end. For as John Adams noted, "We
have no government armed with power capable of contending with human
passions unbridled by morality and religion... Our Constitution was made
only for a moral and religious people. It is wholly inadequate to the
government of any other."
If the executive, legislative and judicial branches of the central
government do not abide by existing constitutional constraints, why
would anyone believe they would abide by additional constraints in the
future?
In either case, caveat emptor.
(Note: In an upcoming column, I will reintroduce a third measure, the establishment of a Constitutional Confederation
of the States, to restore constitutional integrity, which affirms the
Constitution as ratified, rather than seeks to amend it further.)
Pro Deo et Constitutione -- Libertas aut Mors
Semper Fortis Vigilate Paratus et Fidelis
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