Con-con movement returns: some proponents of a federal constitutional amendment to protect traditional marriage are considering calling for a dangerous constitutional convention to accomplish their goal.

They're baaack--those pesky advocates of a constitutional convention. Following defeat of a federal constitutional amendment in the U.S. Senate to define marriage exclusively as a union of one man and one woman, talk began to circulate favoring a constitutional convention to accomplish the task. Leading the charge by convention advocates are Princeton Professor Robby George, Chuck Donovan of the Family Research Council, Frank Cannon, and Tony Perkins. Most convention proponents operate in oblivion of the dangers inherent in the convention process. Their focus is upon the remedy they seek for the perceived need, be it a marriage amendment, a balanced federal budget, a ban on flag burning, legislative reapportionment, or other items which have appeared on the shopping list of convention advocates over the decades.

Article V of the Constitution contains the procedure for amending that document: "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."

Perils of a Constitutional Convention

Amendments are proposed either by Congress or by a convention called for that purpose by the action of two-thirds (34) of the legislatures of the states. The danger of using the latter process is that there is no effective way to control the convention once it begins its work. If a convention were called for the sole and exclusive purpose of proposing a definition-of-marriage amendment, the convention would be able to propose any kind and number of amendments it might choose; it could also utterly ignore the marriage amendment issue. Any topic would be on the table. It could change the republic into a monarchy, ridiculous as that suggestion sounds. It could formally place the United States under the total power of the UN. It could abolish the states. The only limits on the convention are in the minds of the delegates--self-restraint, which is no restraint at all. The point is universally lost on single-issue convention seekers, who fail to look, and therefore cannot see, beyond their own limited agendas.

A majority of the judges and scholars who have opined on the subject have declared that restraints and limitations contained in the resolutions of state legislatures which apply to Congress to call a convention are unenforceable and of no effect whatever. A legislative application for a convention for the sole purpose of securing a marriage amendment is treated as an application without limitation, thus ignoring the marriage amendment issue. The late Chief Justice of the United States, Warren Burger, wrote in a private letter in 1988:

   I have also repeatedly given my opinion that there
   is no effective way to limit or muzzle the actions of
   a Constitutional Convention. The Convention could
   make its own rules and set its own agenda. Congress
   might try to limit the Convention to one amendment or
   to one issue, but there is no way to assure that the Convention
   would obey. After a Convention is convened, it
   will be too late to stop the Convention if we don't like
   its agenda.... A new Convention could plunge our Nation
   into constitutional confusion and confrontation at
   every turn, with no assurance that focus would be on
   the subjects needing attention. I have discouraged the
   idea of a Constitutional Convention, and I am glad to see
   states rescinding their previous resolutions requesting a
   Convention. In these [constitutional] Bicentennial years,
   we should be celebrating [the republic's] long life, not
   challenging its very existence.

Of like opinion was the late Associate Justice of the Supreme Court Arthur Goldberg, writing an op-ed piece for the Miami Herald in 1986:

   A few people have asked, "Why not another constitutional
   convention?"

   ... One of the most serious problems Article V poses
   is a runaway convention. There is no enforceable mechanism
   to prevent a convention from reporting out wholesale
   changes to our Constitution and Bill of Rights. Moreover,
   the absence of any mechanism to ensure representative
   selection of delegates could put a runaway convention in
   the hands of single-issue groups whose self-interest may
   be contrary to our national well-being.

Professor Christopher Brown, University of Maryland School of Law, wrote in 1991 in response to an inquiry into the effect of Article V in the context of the movement for a convention for a balanced federal budget amendment: "After 34 states have issued their call, Congress must call 'a convention for proposing amendments.' In my view the plurality of 'amendments' opens the door to constitutional change far beyond merely requiring a balanced federal budget."

Article V also requires that all amendments, whether proposed by Congress or a convention, become part of the Constitution only when ratified by three-fourths (38) of the states. Proponents of constitutional conventions point to the fact that 13 states can block bad amendments merely by withholding ratification. It is not quite that simple. First, truly bad amendments, those dismantling the Constitution and its most basic provisions, are the province of insiders--those ultimately seeking to place this nation under formal control of unelected bureaucrats and to dismantle the safeguards of liberty found in federalism and the Bill of Rights. They would use media hype and spin to its full advantage in pressing for ratification of radical amendments. Second, the ratification process is a protection against bad amendments only if the convention does not fiddle with the ratification process.

Law of the Land Ignored Once Before

A similar situation arose as America replaced the Articles of Confederation with the present Constitution. The nation technically continued to operate under the Articles of Confederation until the Constitution was ratified. Article X of the Confederation document required that all Alterations (its term for amendments) had to be ratified first by Congress and then by all of the states.

As the work of the constitutional convention of 1787 was concluded, the Founding Fathers were aware that the political climate of the day was not solidly enough behind the new Constitution to secure such unanimous approval. Their remedy was simply to ignore the law of the land--Article X of the Articles of Confederation--and provide a new plan for ratification. They added Article VII to the new Constitution, which allowed it to go into effect upon approval of nine states. Non-ratifying states were left out in the cold as individual "nations." Realizing this, the last four states ratified quickly once the first nine had done so.

The strategy worked, and we gained a superb Constitution in the process. But it was done in defiance of the existing law, which required Alterations to the Articles to be ratified by Congress and all states. What is the lesson? The rules of ratification were illegally, but effectively, changed once in our history. Can anyone confidently declare that it could never happen again?

Are There Safe and Effective Remedies?

Jurisdictions of federal courts are under the control of Congress. Article III, Section 2 of the Constitution empowers Congress to provide exceptions to, and regulations of, the appellate jurisdiction of the Supreme Court. All inferior federal courts are created by act of Congress, which has complete control over their jurisdictions. Congress can remove from their jurisdictions any authority to hear and determine cases involving same-sex "marriage" issues and further deny to them authority to consider cases in which a same-sex "marriage" performed in one state is denied "full faith and credit" in another state. Article IV, Section 1 of the Constitution requires all states to give full faith and credit to the public acts, records and judicial proceedings of sister states. Though the Full Faith and Credit Clause of the Constitution was written in a manner to protect a state from having another state's laws--such as a same-sex "marriage" law--forced upon it, activist courts have previously ignored the intent of the Constitution to fulfill a political agenda. By controlling the jurisdiction of the federal courts, the danger of history repeating itself is nullified.

It is not a complete remedy; individual states would remain free to allow such marriages if they choose to do so. This may not be a tolerable result for those seeking the marriage amendment constitutional convention. It does, however, provide a large measure of protection from federal intervention. Anyone interested in protecting the sanctity of traditional marriage should contact both of his U.S. senators and his congressman to ask their sponsorship and support for legislation enforcing the Article III, Section 2 power of Congress to remove the definition of marriage from the appellate jurisdiction of the Supreme Court and to remove it from the jurisdictions of all other federal courts.

Additional Danger of a New Amendment

There is an additional cost to placing the definition of marriage under federal control, as a constitutional amendment would do. A disturbing trend records the steady flow of power toward the federal level at the expense of the states. As Congress, the executive branch, and the courts amass powers unto themselves, the states have shrunk in importance to Dickens-like caricatures of their former selves. A federal constitutional amendment defining marriage would transfer yet another traditional state power and prerogative into federal hands. States can ill afford such a loss and yet continue to maintain a viable level of the dual sovereignties which define federalism. The number of states which embrace same-sex "marriage" is very small, and with diligence, their citizens can reclaim exclusive traditional marriages. But once more power is lost to the federal government, it is inexorably gone.

Protection against a constitutional convention will not be gained until all existing applications calling for a convention are rescinded. It is a slow, laborious process that is accomplished state by state, yet it can and must be done.

A constitutional amendment's perilous road

Even popular amendments, such as the one against same-sex "marriage," don't stand much chance of being ratified. In fact, the amendment banning same-sex "marriage" did not survive its bid before the U.S. Senate.

If three-fourths (38) of the states approve the amendment, it is ratified and written into the Constitution.

It is then passed to state legislatures, or to special state ... ratifying conventions.

Any amendment to the Constitution proposed by congress must be approved by a two-thirds majority in both the House and the Senate.

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George Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.