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The Founders' Intent

June 18, 2019

Today our federal government is gridlocked, dysfunctional, and in desperate need of repair.

declaration of independence

Because of the unwillingness or inability of Congress to act, a number of citizen groups advocating for government reform are working to convene a convention of states under Article V of the Constitution.  But they are meeting resistance from special interest groups that fear reforms will diminish their power in Washington and groups that are poorly informed about the amendment process.  And, unfortunately, some academics are adding further confusion with their interpretation of the intent of the founders when they wrote Article V of the Constitution.

The Search for Intent

Some scholars that seek to instruct us on the meaning of the Constitution rely on a dictionary that was in use during the founding era, but that does not satisfy some academics; they feel compelled to go deeper, looking for the intent of the founders when they wrote the Constitution.  Perhaps, their thinking goes, the words chosen do not fully express the writers’ intentions, regardless of their apparent clarity.  For the inquisitive and insatiable academic mind this exploration and attribution of intent may be satisfying.

This line of inquiry began as a rebuttal to the “runaway convention” threat that was the primary assault by opponents of a convention of states to consider amendments.  Researchers came up with the limited-agenda convention as the perfect defense against runaway convention fear-mongers; they called for reformers to agree in advance on the convention agenda, disallowing any other topics from being considered at the convention.  This was a creative solution, but one that created complications for a reform effort, adding considerable time and expense to a reform campaign.

This response was taken to a logical conclusion, mandating that the required states (34) must agree on the precise agenda months (even years) before a convention is convened.  As a practical matter, it diminishes the purpose of the convention, which is to meet for discussion, debate, and hopefully reaching consensus on each sponsored reform.  Much of that debate would be required independently in 34 state houses, thus losing the interaction of idea exchanges among the various participants.  This would, in turn, likely reduce the effectiveness of the result.

History and First Principles

When researchers looked at conventions of states held during the founding era, they discovered that most of them had limited agendas that were announced in advance.  From this slim reed of evidence, they concluded that this was the type of convention the founders had in mind when they wrote Article V, and was therefor the only type of convention allowed by the Constitution.  Never mind that the small size of the American colonies and original states made calling and conducting a convention infinitely easier than calling one today, or that partisan politics had not evolved into the brittle, arrogant “take no prisoners” vendetta we struggle with today, or the fact that the republic was so new that problem spots had not appeared that required adjustment.  The political realities of today are far removed from those of the founding era, and to try to force solutions today into the identical format of solutions of the 18th century beggars belief.  Our strongly-held view is that the founders intention was exactly what a common-sense reading of Article V will give us.  And, we should add, the high bar for amendments the founders created is the only protection we need against a runaway convention.  

In their zeal to create a defense against the runaway convention, researchers may have lost sight of a key first principle of the Constitution.  Primary among these is the declaration that in our republic, sovereignty rests with the people (the citizens of the country).  This underlies the entire enterprise, and nothing must be allowed to impinge on it.  So, would the architects of the republic have intended to make it difficult for the people to protect and exercise this sovereignty?  Of course not.  They would most certainly not have imposed any impediments to the exercise of our sovereign power.  We must keep in mind that their primary purpose was to give us a republic in which the sovereignty of the people is clear and the method of protecting that sovereignty is straightforward and equally clear.  It should require no specialized knowledge or skill to understand how to protect, preserve, and exercise that sovereignty.

But with that said, if the people conclude that an adjustment must be made in the Constitution because unforeseen circumstances have intruded on the harmony of our society, how do they exercise this right and express their wishes?  Again, the founders were explicit in the provision for amending the Constitution, and their language is readily understood without the need for interpretation from an intermediary.  But while the process is straightforward, it is not without protection that is consistent with good practices in a democracy: major changes should only be allowed if there is a strong consensus in favor of the change.  On occasion, politicians will ignore this precept and enact a change that lacks public consensus.  When this happens the country inevitably endures a period of internal conflict and resolution may be protracted and painful.

A Test of Consensus

In the case of amendments, the founders included two hurdles that act as a test of the public’s consensus for a change.  The first hurdle is to present a proposed amendment to the states for ratification, and they provided two alternative paths to accomplish this: the simplest of these is for Congress to approve a proposed amendment by a two-thirds majority vote in both the Senate and House of Representatives.  The alternative path is for the legislatures of two-thirds of the states (34) to agree that there is a need for the states to convene a convention to review and debate proposed amendments and consider whether to recommend changes to the states for ratification.  As you can see, the people must demonstrate a consensus to motivate a super-majority of Congress (or a super-majority of states) into these actions. 

And then comes the second hurdle, and it is an even higher bar: three-quarters of the states (38) must ratify a proposed amendment for it to become law.  With this structure protecting the republic it is virtually impossible for an impulsive or damaging change to work its way through the system.  Any successful amendment will have been thoroughly analyzed, debated, and alternatives explored before the process is completed.  The republic is well protected from the “runaway convention” that opponents of reform so loudly describe.  

Death of the American Experiment

Today our federal government is gridlocked, dysfunctional, and in desperate need of repair.  The people should be storming the doors of our legislative bodies, demanding remedial action.  We must not allow fear-peddling opponents or pedantic scholasticism, regardless of its good intentions, to hinder our efforts to achieve constructive, meaningful reform.  The voice of the people, calling for a convention of states to propose amendments under Article V of the Constitution, must be respected and honored.  If we fail to act, we may be remembered as the generation that presided over the death of the American Experiment.   

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
Forum on an Article V Convention at The Heartland Institute

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