My “Insurrection by Convention ” (CE July 29, 2009) examined the Article V convention process in terms of opportunity and safeguards. On the question of opportunity, the essential point was that a simple and temporary unicameral assembly would circumvent the obstructive procedures that are certain to impede or dilute the reform process if we try filtering it through a corrupt and dysfunctional Congress. In other words, the convention which the Framers of the Constitution bequeathed to us offers a realistic opportunity for major and meritorious reform, for “Radical Turnabout ” in our country’s direction.
As for safeguards, the ratification or refusal to ratify whatever a convention might propose is a procedure well defined in the written Constitution. It is an easy and straightforward process for states to check anything that emerges from the Convention. The Article V Convention can only propose. Nothing it proposes is more than a scrap of paper unless three fourths of the states (38 of 50) ratify it. The fate of the ERA as proposed to the states in 1972, but still unratified by the ten year deadline in 1982, shows how measures must run a formidable gauntlet of the states before going into force.
The Article V convention thus offers opportunity tempered with safeguards. Contrast this system with the exceedingly dangerous process of amending from the bench, where judicial edicts require no ratification at all before going into effect. This latter process is responsible for a host of evils, such as expelling religion from public education after 1963. In place of prayer exercises and Bible reading, our schools now have metal detectors.
Since our radical problems will require radical solutions, the Convention offers a unique opportunity like nothing else politically available. Since little of help can be forthcoming from the Executive, Legislative or Judicial Branches at the Federal level, then by process of elimination we must look to the states.
The number of state applications required for an Article V convention is two-thirds, or 34. Only the state legislatures may apply for a convention. The 7400 state legislators in the fifty states can be approached, however, by the general electorate through lobbying, campaigning, and in nine states by indirect initiatives . We can use all these methods and others of exercising leverage on our state legislators. Without question, however, this will be a formidable task politically.
In the second chapter of my book, Treatise on Twelve Lights , I propose a left-center-right coalition that would muster enough political clout to secure applications from 34 state legislatures. Whether such a coalition can be formed, and held-together long enough to win one arch-amendment to the Constitution, remains to be seen. But such is the only way, in my view, to overcome the well-financed and highly placed opposition that will surely mobilize against a genuinely populist agenda for a convention.
A sizeable remnant of Americans favor cultural reforms like reasserting the sanctity of life, defending traditional marriage, restoring religion to the public square, & etc. But in being “wise as serpents and guileless as doves,” we cannot be naïve or oblivious to the fact that ours is a polarized and now largely paganized nation. In such a political/cultural environment, the remnant needs more allies than just those positioned to the right on the political spectrum. To win over citizens who are less than conservative culturally, I propose an exchange of quid pro quos . In return for Judeo-Christian planks in the prototype agenda for a convention, let us offer reforms that address warmongering, ecological responsibility, and full-employment of labor. Such issues enthuse the left, and will hopefully bring a critical mass of left-leaning Americans into the coalition. We can also recruit the center by offering popular planks like term limits and other reforms to clean up and re-democratize the Congress, recasting the Legislative Branch according to the oft cited but no longer honored axiom, “here the people rule.”
And so, having once put together a coalition of conservatives, centrists, and liberals; the challenge will be to lobby the 7400 state legislators on behalf of a single subject matter. The planks in our platform would constitute a predesigned convention agenda, or constellation amendment, that addresses left-center-right concerns.
In formulating the state applications for a convention, it would be a major blunder to “give Congress the alternatives of calling a convention or itself proposing an amendment on the same subject.” In that case, says Russell Caplan, “Congress may take advantage of the offer and propose the amendment, rendering the petitions obsolete.” As Nobel laureate, James M. Buchanan, observes, “‘Congress, logrolling across its special interests…, would provide the weakest possible version ….’” [From Russell L. Caplan’s definitive work, Constituitonal Brinksmanship, Amending the Constitution by National Convention (New York: Oxford University Press, 1988), p. 127, quoting J.M. Buchanan].
Having once secured the requisite 34 applications for a convention to consider, our next step is to elect convention delegates who are open to our prototype arch-amendment. Here the parameters cease to be so explicitly predefined. Russell Caplan , chapters 5-7, has delineated the range of possibilities in far more detail than this short article can attempt. Let me summarize briefly both the good news and the bad news.
The Framers did not bureaucratize the Article V convention. They left much of its form for the present generation to decide. The good news is this: With regulations still undecided on the number of delegates, on the amount of their pay, and on procedural rules that will govern the assembled delegates after the opening gavel; high priced consultants Carl Rove, Dick Morris and their ilk, will ply their trade on uncertain terrain. In other words, big money will face difficulty deploying its well oiled machine whereby to inundate legislators with hoards of lobbyists sent to purchase prized legislation.
The bad news is that concerned citizens will be posing some questions for which convention advocates cannot offer exact answers. For example, how to treat convention advocates like FOAVC ? Their leaders reject Russell Caplan’s informed conclusion (pp. 98-99) that the Framers intended applications to be counted according to subject matter. FOAVC argues to the contrary, that a convention call by Congress is long overdue, given that fifty states have already submitted some 750 applications during many decades on a wide variety of subjects.
Or, more gravely, what happens if Senators and/or Congressmen stonewall, in order to keep the amending process in their own hands? What if Congress disregards or finesses 34 contemporaneous applications on a single subject matter? Suppose the Senate or the House simply refuses to issue the convention call? Would a court order be forthcoming, and would the Legislative Branch obey the Judicial Branch? Senator Roman Hruska of Nebraska (1904-1999) stated in 1967 that if a court order is ignored by Congress, the Supreme Court itself could order the convention.
If the Court refuses to help, could the states organize the Convention on their own, without the consent of Congress? If they proceed without the constitutionally indicated call by Congress, would the courts declare any ratified Amendment that issues from the Convention null and void? Yes, according to Russell Caplan. If Caplan’s scenario comes to pass, might thwarting of the convention lead to armed insurrection?
Clearly, we the people will be proceeding along a wilderness road that is obscurely mapped and, as it were, unpaved. But at least, like an unearthed treasure map, the legacy of the Framers shows us a road. Pressing forward along a primeval trail is preferable to trench warfare that is going badly in the postmodern political desert.