I am starting this thread in GQ but I have no idea where this might wind up. Moderators, do with me as you please.
Over the past year there has been an expansion of federal involvement in what were traditionally non- governmental roles: bailouts to corporations, stipulations about executive salaries, calls for greater federal control of the health care system, etc. You know, the usual stuff that makes Glen Beck want to vomit.
The tea-party supporters (or “tea-baggers as they are so affectionately called) have been griping that these “incursions” are unconstitutional because they go beyond the scope of designated amendments and articles, especially the 10th Amendment. Now, some people are calling for a new Constitutional Convention.
Would there be an advantage to having a convention to 1) clarify the 10th Amendment and 2) propose some of the other items to get clarified once and for all (gay marriage, line item vetoes, balanced budget, term limits for the Senate and Congress, etc.)? Or would the convention cause more problems than it would solve?
Once a convention is called, everything is up in the air. A whole new constitution could be written.
Of course, the obstacles are formidable, and this was from the same newspaper which called for increasing taxes on the poor because they were all “Lucky Duckies” who didn’t understand the full brunt of issues that rich people must face everyday.
First of all, no one has ever called a constitutional convention which would require a call of 2/3 of the states, and I doubt most of the states would actually want to call one since no one has any ideas what would happen in such an event. You are talking big can 'o worms. Many issues have to be worked out:
[ul]
[li] Can a state limit a call in a convention? That is, can they say 'We want a convention to only consider this particular topic."? If so, how can this be enforced?[/li][li] Are these fifty separate conventions or one big convention? The Constitution isn’t clear on this point.[/li][li] Who decided on the format of this convention?[/li][li] Who chooses the delegates? Who sets the rules?[/li][li] What happens if there are disagreements on format?[/li][li] What is the time table for getting 2/3rds of the states to approve a convention? After all, the 27th amendment (the world’s most worthless amendment) was first proposed in 1789 and didn’t get ratified until 1992. Can we take 200+ years to call a convention?[/li][/ul]
Then there is the issue of a Constitutional convention called in this manner trying to seize control of the government. This happened with the French revolution where the convention that was called to write up a new constitution simply declared itself the government. It happened in Bolivia and in Venezuela too.
Even if there is a convention, you need 3/4 of the states actually passing this new Constitution. There maybe doubt if a state has to follow this new Constitution if it did pass. After all, our current Constitution came into effect when passed by 2/3rds of the states, but only in the states that passed it. I can imagine similar arguments.
This maybe why we never had a Constitutional convention before. It’s simply easier to put pressure on your congressional representatives to propose an amendment than to try to get 34 state legislatures to call a convention. After all, whatever gets passed then has to be approved by all but 12 states.
In addition to the problems qazwart mentions, there is a more overriding issue: a constitutional convention would hold up for review the very form and nature of the government itself. It could eliminate the states and establish a national government with federal districts. It could overturn common law and replace it with a Civil Code. It could abolish representative democracy and enshrine hereditary monarchy, or subordinate the government to an ideologically based Party. This wouldn’t be like debating whether to change some of the rules of baseball; it would be like deciding whether to stop playing baseball and take up hockey instead.
For people who want to go back to a pre-New Deal (or even pre-Civil War) status quo, a revolutionary upheaval of the government is the last thing they would want to enable.
Once you open up the hood and start to tinker, you never know what is going to happen. Canada tried to get Quebec onboard at Meech Lake, and wound up making it worse.
A Constitutional Convention should scare the living shit out of anybody with two brain cells to rub together. Once that happens, there are no guarantees. *** Anything ***could pass. Look at the poisonous political climate around the country today. Calling a Convention would probably cause widespread civil unrest and possibly civil war.
Christ, the original Constitutional Convention itself was supposed to merely tinker with the Articles of Confederation, and what resulted was a whole new form of government.
If there truly is an overwhelming interest by the public in reversing our current policies with regard to fixing the economy and health care, then all people need to do is vote for teabaggers in the 2010 congressional elections.
Right, but it would still require 3/4ths of the states to approve anything that the convention passed. In this political climate, I am hard pressed to come up with something that would get that kind of support.
No – proposed amendments to the 1789 Constitution would as you assert require ratification by 3/4 of the states. But nothing prevents the Convention, once called, from writing an entirely new Constitution, and providing that it shall go into effect when approved by, say, 26 states provided that they include over half the population. And because that would be the self-enacting clause of the new Constitution, just as Article VII was of the old, it would ipso facto be constitutional. (Remember that the Articles of Confederation could only be changed by unanimous agreement among the 13 states, and Article VII overturned it, substituting a requirement for approval by nine states.)
Not exactly. The Constituent Assembly not only dissolved itself in 1791, it passed a “Self-Denying Ordinance” that decreed none of its members could sit in the new Legislative Assembly. (Which, in consequence, had zero experience and did not last long.)
The United States isn’t under foreign occupation. The reason we have these “incursions” that the teabaggers dislike is because that’s apparently what the majority of Americans want. Why do the teabaggers think that a Constitutional Convention would throw these things out? The majority would be more likely to increase federal power.
I think that the provision for calling a Constitutional Convention was meant to reassure the state governments with regard to the power of the Federal government (they were really obsessed with that, weren’t they?). It basically means that IF a supermajority of the state governments were really, really pissed at the Federal government, they could call for its replacement. Realistically, I can’t think of any issue today where the states would band together with near-unanimity against the Fed.
Well, the article in the Constitution that says that 2/3 of the states can petition a constitutional convention also says that it must be approved by 3/4 of the states. According to the plain meaning, any newly produced constitution would have to be approved by 3/4 of the states just like any other Constitutional change. And, with that, it would be the law of the land even to states that didn’t approve it.
But, then the Articles of Confederation said that amendments to it had to be approved unanimously by all 13 states, and the new Constitution said it would come into effect when 2/3 of the states approved it. (However, it wouldn’t be enforced in any state that didn’t approve it).
History has shown that constitutional conventions have a way of seizing the moment and the convention challenging the government’s legitimacy. It all really depends how much legitimacy the original government has.
In Venezuela, the government that rotated between the Conservative and Liberal parties had little legitimacy once Chavez took over as President. Chavez’s popularity simply was beyond the base of the two oligarchic parties that really never represented much of the Venezuelan population. When the convention declared itself supreme to Congress and dismissed the Supreme Court, the military and the Presidency backed the convention. The Congress and the Supreme Court had little popularity and no power to stop this take over.
My main worry is that calling a convention might be a piecemeal on and off process that lasts for 20 to 40 years before 2/3 of the states actually pass an approval for such a convention. Then, there will be the question of legitimacy of the call. Unfortunately, the Constitution itself doesn’t put a time limit on the call. My assumption is that the authors thought this would be a rather quick thing. The states would talk to one another, and with in a few months, you’d call a convention or you wouldn’t.
I remember during the passage of the Equal Rights Amendment, there were all sorts of issues raised. Supporters got Congress to extend the length of time for passing the amendment once and they also said that once a state approved the amendment, it couldn’t rescind it’s approval.
Although I agree with the Equal Rights Amendment, I was glad it didn’t pass because I worried about its legitimacy. What would have happened if it took 9 years to pass and a dozen states that originally passed the amendment claimed they rescinded their approval? Can you imagine the problems we’d have with 1/2 the population claiming it was part of the Constitution and the other half saying it wasn’t?
That would be my worry: Half of the country claiming the process has some sort of legitimacy while the other half says no.
I think a convention is a bad idea. A better idea would be to just propose an amendment that explicitly restricts Congress’ powers, using language so plain even a Supreme Court 200 years from now won’t have the guts to overturn it.
Apparently, “regulate commerce among the several states” was too complex to understand. SCOTUS in 1934 translated it to mean “We can do anything we want! Nyah!”
Heh, dream on, buddy. If anything, the convention will demonstrate that nothing is “once and for all”, since all you have to do is call another convention and re-clarify that which was clarified, just as much “once and for all” as the first time.
As far as I can tell, the constitutional convention won’t have the power to do anything a future constitutional convention can’t undo, just as messily.
