This commentary originally appeared in Forbes on May 25, 2016.
In January, Texas Governor Greg Abbott called for a convention of states to propose amendments to rein in the federal government. His Texas Plan employs the states’ power under Article V of the Constitution to call an amendments convention. Under Article V, it takes two-thirds of the states (34) to propose a convention and three-fourths of the states (38) to ratify any proposed amendments. Since the governor announced the Plan, three more state legislatures—in Tennessee, Indiana, and Oklahoma—have joined. Alaska, Georgia, Alabama, and Florida already have approved the Convention of States Project’s proposed resolutions.
However, there has been resistance, and not only from those who favor big government and its expansion-friendly doctrine, the “living Constitution.” Some on the political Right also question the convention of states movement. “Contrary to popular belief, there are no rules for such a convention,” writes Noah Rothman, who concludes that we have “no guarantees that conservative delegates can maintain total control over such a radical process.” The result, contrary to the intentions of those who pushed for a convention, could be a free-for-all.
John Yoo agrees: “[O]nce a convention meets, it could propose any amendments it wants or even a completely redesigned Constitution…. [N]othing in the text of Article V… permits Congress or the states to restrict the scope of the convention.” Thus, Yoo reasons, “the conservative in me thinks a constitutional convention is a bad idea because of the inability to limit the convention’s work.” What might this inability yield? “We could go in with a Constitution with a separation of powers, federalism, and a Bill of Rights, and emerge with a wholly new framework of government that merges all state power into one government….”
I have written previously of the fear of some conservatives of a “runaway convention.” The most direct rejoinder to this concern is the Constitution’s requirement that any amendments proposed by a convention—be it “runaway” or not—must garner the approval of 38 states to become law. Merely thirteen states can veto any measure proposed.
However, other critics of a convention of states believe their runaway-convention forecast is vindicated by the past: The 1787 Convention, some argue, itself was a runaway convention. If the Founders could not prevent this then, how can we expect today’s politicians to do so now, especially given the fact that today’s politicians are the source of the very problem a convention of states seeks to remedy?
Answering these concerns requires first distinguishing an Article V convention from a “constitutional convention.” Oklahoma Attorney General, Scott Pruitt, addressed this in “A Brief Reflection on Article V of the U.S. Constitution.” Granting that concerns over a runaway convention are “understandable,” nonetheless, “safeguards exist to protect our Constitution against abuses.” Conventions called under Article V may “only propose amendments. A plenipotentiary convention—a constitutional convention called for a broad and unrestrained purpose—is not authorized under the U.S. Constitution.”
Given the distinction between an amendments convention (what the Convention of States Project and Governor Abbott seek) and a constitutional convention, the next question is whether the 1787 Convention was a runaway proceeding.
This accusation was first leveled immediately after the Philadelphia Convention completed its work. The wording authorizing the Convention stated that the delegates would meet “for the sole and express purpose of revising the Articles of Confederation.” But the Convention did far more: It scrapped the Articles.
In addition, the Philadelphia Convention altered the ratification process. First, Congress and state legislatures were bypassed in favor of state ratifying conventions. Second, the new Constitution would become the law of the land upon ratification by three-quarters of the thirteen states. Under the Articles, ratification required unanimity. The Constitution’s adversaries argued that neither of these changes enjoyed any legal foundation.
These illegalities, argued opponents, would doom America’s constitutional future. “[T]he same reasons which you now urge for destroying our present federal government, may be urged for abolishing the system which you now propose to adopt,” argued Luther Martin.
These charges, though strong, lost much of their clout during the period that the new Constitution was debated. Their strength waned because, after all, the fate of the proposed Constitution now rested in the hands of the people themselves.
More to the point, the Constitution’s defenders prevailed at the Convention with this rejoinder: Yes, they conceded, the Philadelphia Convention was authorized “for the sole and express purpose of revising the Articles.” But the authorization also stated that the purpose for revising the Articles was “to render the federal constitution adequate to the exigencies of Government and the preservation of the Union.” On this basis, pro-Constitution delegates successfully argued that an “adequate” government was the end to which the resolution pointed to the Philadelphia convention as the means. All ends are superior to their respective means. Therefore, since merely revising the Articles would not produce the end of a government “adequate” to Americans’ needs, the Constitution’s defenders argued that scrapping the Articles was justified.
As the late political scientist, Martin Diamond, stated the case, “Both sides could make an argument upon the basis of the authorizing documents because they contained an ambiguity, indeed a contradiction. And contradiction cannot command.” What was the contradiction? “The double injunction laid upon the Convention” to produce an “adequately strong union” while preserving “the confederal form.” Diamond asks, “But what if such a union required abandoning confederation and forming a national government? Which of the two parts of the contradictory command would be binding on the Convention then?”
Diamond demonstrate how the pro-Constitution camp leveraged this contradiction to justify “ignor[ing] the Articles.” That is, they “took advantage of the contradictory desire of their opponents for both the blessings of close union and those of loose confederal form.”
In this light, one is hard-pressed plausibly to assert that our Constitutional Convention was a coup d’état. Moreover, the Constitution crafted at the Philadelphia Convention is among the greatest, if not the greatest, governing document produced in history. If it was the child of a “runaway convention,” then, given the crisis of our overreaching federal government, one is inclined to suggest that we have another.