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Con-con agenda out in the open: single-issue constitutional conventions have been repeatedly proposed as the answer to solve federal failings. Now convention proponents are issuing calls for wholesale remaking of the Constitution.

The United States has not had a constitutional convention since 1787, when the Founding Fathers decided to replace the Articles of Confederation, the then-existing constitution, with the Constitution we have today. In the past 219 years, our Constitution has since been amended 27 times. In each of those cases, the proposed amendment was approved via a process of obtaining a two-thirds majority vote of both houses of Congress and then ratification by three-fourths of the states--either by the state legislatures or by special state ratifying conventions, the mode of ratification being determined by Congress.

This process, beginning with Congress and ending with the states, is one of two basic approaches authorized by the Constitution's Article V for amending the Constitution. The other approach, entailing a constitutional convention, is initiated by the states. Under Article V, Congress must call a constitutional convention upon receiving applications from two-thirds of the states; any amendments drafted by such a convention would then be sent back to the state legislatures--or to special state conventions--for ratification.

Over the years, states have petitioned Congress to call a convention for various specified purposes. As recently as 1983, the country came close to holding the second constitutional convention in its history when Missouri became the 32nd state (34 were needed) petitioning Congress to call a convention for the stated purpose of drafting an amendment to balance the federal budget. Since that time, however, eight of the 32 states have withdrawn their applications for a "balanced budget" convention.

Proponents of calling a convention for specific purposes have argued that a convention could be limited to those purposes. Yet our first constitutional convention established a precedent for a runaway convention by ignoring its mandate to revise the Articles of Confederation in order to draft a new constitution. It even changed the ratification process from unanimous approval by the states to a three-fourths majority. And though the result ended up being a good thing, it is almost certain that the result would be very different if a constitutional convention were to draft a new constitution today.

Back in the 1980s when the drive for a balanced-budget amendment had peaked and then begun to ebb, fears that a convention might be used to make major changes to our governmental system, as opposed to simply adding a specified amendment, were considered overblown if not unfounded. But in more recent years a growing number of convention advocates have begun publicly proposing just that.

So-called Savants

Consider, for example, Sanford Levinson, professor of law at the University of Texas Law School, who argues for a modern-day constitutional convention in his book Our Undemocratic Constitution, published earlier this year. Enamored with pure democracy, Prof. Levinson criticizes the Constitution for being undemocratic. He stands in stark contrast to James Madison, who expressed in The Federalist, No. 49, his fears of runaway public passions, which would jeopardize the stability and good order of government.

Levinson's targets for amending the Constitution include the undemocratic Senate, where the most populous states have the same number of senators as the least populous ones; the electoral college; the tyrannical exercise of executive power; and life tenure for federal judges. He acknowledges that the revisions he has in mind strike at the heart of the very nature of our republican form of government:
 We the people should have the opportunity
 to decide, in a new convention,
 what conception of the
 presidency is most congruent with
 our sense of republican government.
 Or ... we might decide that adherence
 to republican government is
 naive and even dangerous to our
 modern world. If so,... we should
 [decide that we are] modifying our
 most basic commitment.

To accomplish his goals, he recommends a nationwide petition campaign asking Congress to call a constitutional convention, despite the fact that this approach fails outside Article V, which says that two-thirds of the state legislatures must apply for a convention in order to trigger the convention call. Levinson's extra-constitutional proposal for calling a convention echoes the proposal Yale Law Professor Akhil Reed Amar advocated in his 1998 book, For the People. Amar, whom Levinson quotes, audaciously asks:
 Could We the People, by majority vote, amend the Constitution
 so as to establish term limits for members of Congress?
 Outlaw abortion? Require prayer in schools? Mandate
 a balanced federal budget? Demand vast redistribution
 of wealth? Ban discrimination against homosexuals? Set a
 mandatory retirement age? Expand the President's term to
 ten years? Set Congress's pay at $25,000? The answer to
 all of these questions is yes....

 Article V ... does not say that the procedures it outlines
 are the only means of amending the Constitution.... Article V
 merely sets forth one mode of amendment [by convention]....
 There also exists a separate means of amending the Constitution:
 a national referendum (of sorts) by We the People.

Amar's (and Levinson's) assertion is outrageous and unprecedented in American jurisprudence. Amar resorts to the same thinking used by advocates of the "living Constitution" doctrine--they read the document so as to give it a shifting, never-settled meaning strongly influenced by the egocentric personal desires of its left-of-Looney-Tunes adherents.

Another call for a constitutional convention to address multiple amendments is found in lawyer and author Edwin L. Wade's book Constitution 2000, originally published in 1995. Wade would reduce the number of seats in the House of Representatives from 435 to 225; he would reduce the number of Senate seats from 100 to 50 (with no more than eight committees). He also proposes 11 other amendments. His cogent point is a flawed belief in a limited con-con: "The convention shall be limited to consideration of only those subjects listed [in the state applications]." But many legal scholars disagree that a convention can be limited. "One of the most serious problems Article V poses is a runaway convention" retired Supreme Court Justice Arthur Goldberg warned in 1986. "There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill or Rights"

Unhappy Trails to You

These authors are blazing a new trail into constitutional destruction; their goals could rend the cohesive fabric of this nation--our Constitution, our laws, our morals, and our values. They act as minions of the power elites who seek to construct a totally new government. Yet they write and speak only the soft, fluffy, comforting words like democracy, equality, and fraternity--the logo of the French Revolution, which degenerated into chaos and anarchy.

What's to be done? First, all unrepealed applications for a con-con must be removed. Second (and contemporaneously), a vigil must be maintained to identify any state legislature that is considering passing new con-con applications. Any such applications must be opposed in the state legislative halls, no matter how appealing their unenforceable single-issue focus may be. Third, in the event that a national referendum, petition, or movement is launched to call a con-con through direct popular appeal, the invalidity of this effort must be exposed.

George Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.
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Author:Detweiler, George
Publication:The New American
Date:Dec 11, 2006
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