A “Runaway” Constitutional Convention is Impossible!

Many people agree that the Federal government is out of control and that it is incapable of reforming itself. The solution would be to call an Article V Convention so the States could bypass Congress to pass reformatory amendments. Problem is: half of us are afraid of convening one because we think there is too much risk of it going “runaway” – and us getting stuck with a document that more resembles the Soviet Constitution than the American one.

That’s poppycock, and I’m no pollyanna. A convention going “runaway” and us getting stuck with a “statist” constitution is impossible.

Bold words, huh? I just don’t understand, do I? Well, with your indulgence, I will endeavor to prove what I say. Got your seat belt fastened? Then let’s go!

The best way to show what I mean is to show that the conditions back then don’t exist today, making a similar “runaway” impossible, and that the current Constitution doesn’t even provide for a “runaway” and has many ways to stop one if anybody tried.

THE CONDITIONS BACK THEN

  1. First, the Constitutional Convention that replaced the Articles of Confederation with the Current Constitution was convened under the…ARTICLES OF CONFEDERATION, not the Constitution. Duh!
  2. Even then, the Constitutional Convention DIDN’T go “runaway”:
    “There is zero precedent that any convention of the states has ever “runaway” from its assigned agenda. There have been 12 interstate conventions in the history of our country. All of them stayed within their stated agenda. Even the Constitutional Convention of 1787 was not convened to “amend” the Articles of Confederation, but to “revise” and “alter” the Articles to establish an effective national government. This was fully consistent with the Articles of Confederation because the Articles authorized alterations – a term that had revolutionary significance because it echoed the language of the Declaration of Independence. The broad purpose of the Constitutional Convention of 1787 was specifically mentioned in the call of Congress and in nearly all of the commissions for the delegates for each state. The 1787 convention did not runaway at all; it did what it was charged to do – like all interstate conventions preceding it.” (Quote from “10 facts to rebut the mythology of a runaway convention“, see “Bibliography”)
    Therefore, it worked according to plan, and the delegates kept the convention within its bounds.
  3. This convention was called by the very biggest of the big fish in a very small pond. There were only 3 million inhabitants in the 13 former colonies in 1783. George Washington and the other founders were extremely rich by today’s standards, and were held in such high esteem by other Americans so as to be gods. The original Senate was afraid to exercise its ‘advice and consent’ Power with President Washington because no one thought that they knew enough to advise him of anything, they held him in such awe! There is no equivalent to them today, and the influence of even the super-wealthy today is diluted by hundreds of millions of people. None of them are held in esteem even remotely equivalent to the framers, who had risked their comfortable existences and became rebels against the most crushingly dominant government on the planet at the time. Everyone knew that, had they lost, they would have swung from the gallows, their riches would have been seized, and their families would have been destitute. That they had everything to lose and still fought for their principles made them objects of reverence.
  4. The Articles of Confederation was only 4 years old, and so did not have two centuries of legal and customary precedents interfering with adopting a new Constitution.
  5. We were recovering from a costly war. A new nation was formed and the times were unsettled.
  6. There was a general understanding that the Articles of Confederation was inadequate, yet the Constitutional Convention still almost didn’t go off, and had withering opposition.
  7. The Constitution was only completely ratified after a Bill of Rights was added.
  8. Even with Framer support, it was still an uphill slog to get three-fourths of the States to ratify it.

None of these conditions exist today, thus a modern convention couldn’t go runaway under them.

THE CONDITIONS NOW

There is no such thing as a Constitutional Convention under today’s Constitution. There IS the ability of the the States to propose amendments directly instead of working through Congress, a Power granted under Article V. The purpose was to let the States bypass Congress if the Federal government were to get out of control. If two-thirds of the States agree there is a need for amendment(s), they would gather together at a convention to hammer out what was to be covered and codify it into a standardized amendment proposal, which would then go back to all the States to be voted up or down by their State Legislatures or State Conventions (equivalent to a Legislature). If three-fourths of the States would vote to approve (an extremely high standard), then the amendment would be passed.

AN ARTICLE V CONVENTION WOULD BE FUNCTIONALLY THE SAME AS CONGRESS DEBATING AN AMENDMENT

State conventions are no bogeyman: they were the way States made agreements with each other in yesteryear. That’s why the Framers came up with this text for Article V of the US Constitution:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Somehow, in the minds of the people claiming Armageddon if the States were to do a Convention, this text would allow or even REQUIRE a Convention of the States to be a general one that couldn’t be limited in any way, leaving the door wide open to “runaway”.

This is preposterous. You really have to cross your eyes, fire up the crack pipe, take a hit of industrial-strength LSD, put on two tinfoil hats, and listen to your tooth fillings to come to an interpretation that even approaches this. Think about this, dear reader: the intention was that either Congress OR the States could propose amendments. Since Congress is already assembled, it wouldn’t need to call a convention to propose amendments, would it? No. Okay. Stick with me. The States, being spread over thousands of miles, weren’t assembled to propose amendments. How would they assemble? By calling a convention. The only other option would be to circulate a paper with the exact language of the amendment and then get it approved by ALL the State legislatures without ANY changes. What do you think the chances are that the legislatures would want to make NO changes? Did you think “zero”? I agree with you. So, given that people moved around by horse and buggy in those days, it would take forever to get something like that done. Thus, a logical person would quickly conclude that a central meeting point for the State delegations would be needed, a “Convention”.

Congress assembling and the States assembling are functionally the same, right? Whenever Congress has assembled to propose amendments in the past, it has always managed to limit the discussion to only the amendments previously proposed, and never gone “runaway” – so why would anyone think that the same thing done by the States would be any different?

BUT, you persist, some people have said that a State convention couldn’t be controlled by Congress. That’s correct–it would be controlled by those who proposed it– the States. Why should a States’ convention be controlled by Congress, anyway? After all, the States don’t try to assert control over amendments passing through Congress, so why would the converse be a concern?

It only makes sense that both the States and the Congress could limit the scope of amendments, because if there were always a threat of completely undoing the Constitution every time an amendment were proposed and the drastic change that would entail, then amendments would never be proposed! Why would the Framers have wasted ink putting Article V in the Constitution if they intended it to never be used? Every time Congress has proposed amendments, it has always limited itself. Why wouldn’t that apply to States? That should mean that Congress or the States can propose multiple amendments or single ones if either desires, but neither is REQUIRED to do so. Why would the States be required to do a general convention if Congress isn’t? No reason at all.

The next-to-last reason why a convention that decides, unplanned, to create a brand-new Constitution (i.e. “runaway”) would go nowhere is that the State delegations are subject to immediate discipline from their States telling them to “knock it it off”, and should they refuse, they would be recalled by their respective States, leaving no one to perform the “runaway”.

The final reason a Convention of the States would be safe from a “runaway” is that, even if somehow the convention managed to create a brand new Constitution without authorization, it would go nowhere, because three-fourths of the States would still have to approve it, and what do you think the chances of THAT are? Right…zilch, zero, nada.

So, dear reader, I endeavored to prove to you that a “Runaway” is impossible. Have I proven my case?

BIBLIOGRAPHY

This article is based on the following two documents:
“10 facts to rebut the mythology of a runaway convention”, Nick Dranias, Director of the Center for Constitutional Government at the Goldwater Institute
https://goldwater-media.s3.amazonaws.com/cms_page_media/2015/6/3/10 Facts Runaway Conv.pdf

“THE OTHER WAY TO AMEND THE CONSTITUTION: THE ARTICLE V CONSTITUTIONAL CONVENTION AMENDMENT PROCESS”, James Kenneth Rogers, Harvard Journal of Law & Public Policy, Vol. 30
http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf