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Commentary: States Can Spark National Reform with an Article V Convention

July 3, 2019

Article V of the Constitution provides two methods of amendment.

The culture of the American colonies in the late 18th century was dramatically different from that of the United States today. Thanks to the genius of the Founders in creating a governmental system that fostered technological change, we have grown dramatically and created a level of widespread wealth unequaled in the history of mankind.

The resulting exponential growth of technology has dramatically improved the quality of individual lives. It is surprising that the Constitution that was ratified in 1788 is still largely intact and our republic has survived.

The Framers who wrote the Constitution had the foresight to protect the republic from change by distributing political power among competing groups. We have reaped the benefits of their foresight for most of the past 230 years, but the cumulative failures of government have now produced an unsustainable situation that requires our attention.

The philosophers and pundits of the eighteenth century may have been right in their prediction that democracy is doomed to failure because of its inherent bias that leads the public to spend more than it produces. Acting individually, the citizenry will generally live within its means, but when acting collectively in a democracy, personal accountability disappears and groups scramble to obtain ever-larger shares of the public treasury.

Federal Leadership Failures

The failures of our elected federal officials in the modern era have compounded the problems created by social changes. They have put their own interests above the nation’s, mismanaged the finances of the government, misled the people as to the truth of our national condition, imposed obligations on the states without their consent, and created unaccountable agencies which undermine the rule of law.

This seemingly intractable behavior results in fiscal deficits that can end in national insolvency. We are drifting, unintentionally, into a cul-de-sac of a dysfunctional government that wastes its resources on power-seeking, creeping corruption, and an unwillingness to engage in rational political discourse. We have seemingly arrived at a dead end, and the republic is dying a slow but certain death. But the Framers, who had great distrust of government, provided us a way out.

States Can Lead

Article V of the Constitution provides two methods of amendment: one on the initiative of Congress, and the other on the initiative of the states. The latter anticipates the inability or unwillingness of Congress to initiate needed reforms. It enables the states to take the lead on reform by calling a convention of states to recommend amendments to the Constitution.

No convention of states has resulted from the numerous calls for reform over the decades. Whenever Congress saw that the mood of the country favored a reform, they jumped to the head of the parade and initiated the amendment action. They have done this for all of our 27 amendments, plus a few that were not ratified. But the evidence does not indicate that Congress will do so in today’s political climate.

Stoking Fears of Reform

Any proposal for change will meet with opposition. Some people are happy with the status quo and are skeptical that a change would be an improvement. But the strongest resistance comes from groups that would lose a position of prestige and power if reforms were adopted. These are the Threatened Interests.

In the middle of the twentieth century, when suggestions were made to convene a convention of states to reform government, the Threatened Interests came up with a clever defense. They worked to instill fear in the public that a convention could do irreparable harm to the country. They preached that a convention could be commandeered by nefarious forces that would destroy the Constitution and our freedoms—that is, become a “Runaway Convention.”

Although their claim was baseless, it struck a nerve among some stalwart defenders of the Constitution, adding to the opposition to a convention. This argument was resurrected in the twenty-first century as interest in reform grew again.

State Ratification Protection

Some proponents of reform reacted to this development by arguing the threat of a runaway convention could be eliminated by defining the convention agenda in advance and barring the introduction of any matters not previously approved. The historic evidence that the framers of the Constitution not only favored limited-agenda conventions but mandated them is thin.

Even more importantly, these critics ignore a key provision of Article V that completely neutralizes the runaway convention threat. The convention does not have the power to approve amendments—it can only recommend them to the states for their consideration. Three-quarters of the states (38) must ratify a proposed amendment for it to become law. This is a very high bar and requires a strong consensus of citizens across the country to achieve ratification. This is ample protection against any threat of a runaway convention.

Some scholars suggest that attempts to limit the agenda of a convention of states are not proper because a convention of this type would have the inherent authority to consider any ideas that might be presented to it. If they are correct, any attempt to limit the agenda would be frustrated. Nonetheless, the high bar for ratification would still supply ample protection to neutralize dangerous rogue actions.

Frank Keeney (act2reform@gmail.com) is founder and chairman of Act 2 Movement.

Internet Info

Frank Keeney, “The Founder’s Intent,” commentary, The Heartland Institute, June 18, 2019: https://www.heartland.org/news-opinion/news/the-founders-intent

Frank Keeney, “The Fork in the Road,” commentary, The Heartland Institute, June 11, 2019: https://www.heartland.org/news-opinion/news/the-fork-in-the-road

Author
Frank Keeney is Founder and Chairman of Act 2 Movement and a Policy Advisor for Constitutional Reform at The Heartland Institute.
act2reform@gmail.com

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