Would A Constitutional Convention Mean Chaos?

Constitutional nerds like myself should definitely check out this policy report from the Goldwater Institute about the founder’s vision for constitutional convention.  If you’re like me, you’ve always been a little bit cautious about the idea of having open-heart surgery on one of our nation’s founding documents.

But the folks at Goldwater provide some necessary perspective:

Under Article V of the U.S. Constitution, the states have the power to apply to Congress to hold a convention for the purpose of proposing constitutional amendments. This power was meant to provide a fail-safe mechanism to control the federal government.

This report demonstrates that the historical record during the Founding era establishes a clear roadmap to guide the Article V amendment process. Among other seminal discoveries, this report reveals that the Framers rejected drafts of Article V that contemplated the very kind of wide-open convention that could “run away,” substituting instead a provision for a limited-scope convention, attended by state-chosen delegates, and addressed to specific subject matters.

Of course, abuses of the Article V constitutional amendment process are possible. But that possibility must be viewed against the clear and present danger to individual rights and freedom of doing nothing. This report recommends that states seriously consider initiating the Article V constitutional amendment process to restrain the federal government.

This is a particularly timely topic for discussion in Arkansas as Republican legislators recently announced their support for a National Debt Relief Amendment, which does in fact call for a constitutional convention.

Sure, there is plenty to be afraid of when you’re talking about giving people who want to cede state authority to the federal government a scalpel and letting them operate on our nation’s most precious organ, but perhaps, if we’re about to suffer a massive heart attack, a few stints are necessary.

Nic Horton

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3 comments

  1. Pingback: Goldwater Institute Makes The Case For Debt Relief Amendment «
  2. Bill Walker

    I would like to point out what the author does not mention. 49 states have submitted over 700 applications for a convention call. The Constitution mandates a call if 34 states apply. The applications can be read at http://www.foavc.org. Thus, whether or not Arkansas sends in yet another application is not going to effect the issue whatsoever. Because Congress has refused to call the convention as mandated by the Constitution, a criminal complaint has been filed and is currently under investigation by the Attorney General. Details on this can also be read at the FOAVC website.

    As to the Goldwater Report:

    a few scholars have researched the operational aspects of a convention. One such report of the operational aspects of an Article V Convention was released by the Goldwater Institute in September, 2010. The report, entitled, “Amending the Constitution by Convention: A Complete View of the Founders’ Plan” was written by Professor Robert G. Natelson. This report proposes a method whereby the states can control the agenda of a convention. The report suggests the states, by use of fiduciary law principles, can control all aspects of an Article V Convention. Under this plan, the convention becomes no more than a politically pre-determined event with little input or control from the people. The report can be read at Goldwater Institute.

    Because of concerns regarding what type of convention this plan will create and to correct factual errors within it, I am releasing a rebuttal to the report. The Rebuttal to the Report (or click here for an End-Note version) corrects assumptions in Professor Natelson’s report that assert fiduciary law principles can be used to control an Article V Convention. My six months of research leads me to believe fiduciary law principles, unless they are specifically expressed in the Constitution, have no place in constitutional law, let alone serving as the basis of regulation of an Article V Convention. The rebuttal uses historic records of the 1787 Federal Convention, (something not found in Professor Natelson’s report) Supreme Court rulings and other relevant public records to demonstrate the Founders had at least two opportunities during their debates over the amendment process in the 1787 convention to introduce such fiduciary controls by the states into Article V. The Founders rejected these opportunities on all occasions and instead relied on other means to allow control of a convention.
    The rebuttal agrees with Professor Natelson on one central point. The rebuttal concludes the state legislatures may, if they wish, politically control convention proposal agenda in real time, that is, during the actual convention or, if the states wish, even before a convention occurs. Yet the rebuttal proposal simultaneously allows for a convention to freely discuss and propose whatever amendments it wishes if it is so politically inclined. The convention thus ceases being a figurehead convention as proposed by Professor Natelson and is free to be the constitutional think tank intended by the Founders with full, open, public participation of the people rather than being prone to a pre-determined political outcome controlled by special interests. Unlike Professor Natelson’s report, the rebuttal proposal employs Supreme Court rulings as its basis of support. In sum, while the rebuttal proves the method of convention control proposed by Professor Natelson is constitutionally, legally and politically unfeasible, it offers an alterative which satisfies all of these criteria.

    The link for the rebuttal is: http://foavc.org/file.php/1/Articles/Rebuttal_to_Amending_the_Constitution_by_Convention–A_Complete_View_of_the_Founders_Plan.pdf

  3. Pingback: Why A Constitutional Convention May Not Be As Scary As You Think «

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