In Which I Announce My Candidacy for Public Office

The Carpetbagger reports that Constitutional convention talk refuses to go away:

some of the less-sane members of the GOP base are openly considering a constitutional convention because of the Senate’s failure to pass an amendment banning gay marriage. Unfortunately, talk of such a ridiculous idea seems to be increasing, not decreasing.

A second Constitutional Convention is actually far more likely than it should be: Over the decades, arguably as many as 32 states have passed resolutions calling for a Constitutional Convention, just two shy of the 34 needed. I say “arguably” because some of these were a long time ago, and Dillon v. Gloss (1921) (!) tells us that changes in the Constitution should be the result of a “contemporaneous consensus.” Nevertheless, there is a contrary body of opinion, exemplified by the ratification of the 27th Amendment that these calls do not have a ‘use-by’ date — they remain in force at least until rescinded by the legislatures which issued them. (Some people even argue that since the Constitution doesn’t mention taking back a call for a convention, even a rescinded call for a Convention remains in effect!)

On the other hand, many of the petitions states have voted in the past are plausibly dismissed as technically deficient, as they purport to request that a convention be called for a particular purpose (e.g. to consider a given amendment), while the Constitution quite clearly contemplates only an open-ended procedure. It’s not at all clear what weight to give those resolutions.

Working on a worst-case hypothesis, as best I can tell the 32 states that have called for a new Constitutional Convention in some form or other are:

Alaska, Arizona, Arkansas, Delaware, Colorado, Georgia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska , New Hampshire, New Mexico , North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania , South Carolina, South Dakota, Tennessee, Texas, Utah , Wyoming

Many of these states passed resolutions that purported to limit the requests to a balanced budget amendment, and the large majority did so between 1975 and 1979 — almost a generation ago.

Alabama, Florida and Louisiana each subsequently rescinded their calls. As if in counterbalance, South Carolina and Tennessee passed their resolutions twice and Louisiana did it three times.

One house of the bicameral Nevada legislature also purported to “purge” its resolution, but as the call had been voted by both houses, it’s hard to see this as legally effective.

So the bottom line is…confusing. If the calls for a limited convention count as calls for an unlimited convention, and the rescissions don’t work, then we could be as little as two states away. If the three rescissions are legally effective — and I think they should be — we could be as little as five states away. On the other hand if only knowing and general calls for a convention work (which, on balance, I think should be the right answer) then we are very far away, although I don’t know what the exact number is; similarly, if the courts were to craft some sort of time limit for the validity of a call for a Convention, then we could be almost at square one, depending on what the line was.

Even if a Convention were to meet and to report out a new document, or changes to the old one, any revisions would have to be ratified by the states. I am sure that I don’t need to spell out how dramatic the potential changes could be — for ill, or even for good.

So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I’m going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)

This entry was posted in Law: Constitutional Law. Bookmark the permalink.

5 Responses to In Which I Announce My Candidacy for Public Office

  1. molly bloom says:

    I’m in Florida, count me in. Every blogger/ blog lurker- lawyer needs to be in on this.

  2. RandomCrank says:

    You can run for office. If this happens, I’m running to another country. Absolutely nothing good can come of this in a day and age where I’ll wager a majority of our elected representatives would flunk a basic civics test.

  3. Luke says:

    A constitutional convention could turn into a boon for progressive causes rather than the travesty desired by many on the Right.

    Obviously, given its open-ended format, prudence would demand that partisans take care in embracing something so severe where the outcomes are unknowable. There is nothing that would stop the delegates from voting in a new constitution entirely, scrapping the entirety of the current amended document.

    On the other hand, if this convention should ever come to pass, progressives, liberals, libertarians and all other lovers of freedom and liberty need to be ready with their own slate of amendment proposals to place in contrast to the knuckle-dragging calls to enshrine bigotry and hate into the constitution. I would propose:

    a Right to Privacy amendment (ending once and for all the penumbra debate),

    an express Incorporation amendment (stating the intent that the Bill of Rights applies as against the Several States),

    a Campaign Finance Reform amendment (declaring that money does not equal speech in the context of campaign finance reform),

    a Human Rights amendment (declaring that corporations are not “persons” for constitutional, taxation, or other legal purposes),

    a Voting Rights amendment,

    a Reaffirmation of Respective War Powers and Rights Amendment (reaffirming constitutional intent that Congress, Judiciary and Executive each have respective roles during wartime and quasi-wartime situations, and that constitutional protections remain during wartime),

    a State Secrets Amendment (stating the Congress must be apprised in closed session of all secret programs of the Executive and their financing so as to conduct appropriate oversight),

    a No Stripping Amendment (removing Congress’s ability to strip jurisdiction from the federal courts),
    a Bivens Civil Rights Remedies Amendment (providing that Congress cannot remove the Judiciary’s duty to give remedies to plaintiffs for constitutional violations),

    a Repeal of Sovereign Immunity Amendment (repealing 11th amendment, repealing municipal liability protections, but affirming qualified immunities for officials),

    a Right to Prove Actual Innocence Amendment (abrogating high court’s woeful habeas corpus jurisprudence),

    a Citizen Standing Amendment (allowing citizens to sue the government to enforce constitutional rights of all citizens or taxpayers in general, or to protect another’s rights),

    and a slew of amendments granting the so-called “positive” rights popular in most modern constitutions, such as right to healthcare, right to affordable housing, right to work, right to unionize, etc.

    These are just a few to kick around as we start thinking about the practical reality of a constitutional convention. Remember…..anything goes. Every Supreme Court case you hated (or loved) in law school is up for grabs.

  4. Brett Bellmore says:

    It’s been a generation since Congress actually sought the states’ permission to “amend” the Constitution, and subsequent Congressional action on constitutional amendments has been more in the nature of a PR game than a serious effort to alter our founding documents. Whenever the pressure for an amendment gets too high, they bleed off some of it by pretending to be working on one, but stage manage the effort to make sure nothing emerges for the states to vote on.

    With a Court willing to read into the Constitution whatever powers Congress and the President happen to feel like exercising, what need does the federal government have for the Article V amendment process? It gets them nothing they can’t get more expediently by usurpation, and subjects their requests for more power to the possiblity of rejection.

    That is why Congress no longer sends amendments to the states. That is why the last ratified amendment, the 27th, was deliberately rendered moot by the judiciary. And that is why, if the states do call for a convention, Congress will find some way to render the effort pointless.

    I’m betting that either Congress will simply refuse to respond to the call for a convention, counting on the courts to decide that yet another Constitutional clause is void due to being “non-judiciable”, or they will take advantage of the fact that the process for chosing members of the convention isn’t specified, and declare that the ideal members are… themselves.

    Either way, having seized unilateral control over the effective “meaning” of the Constitution, I do not believe they will permit that power to be reclaimed by the states.

    On the odd chance I’m wrong, though, I’d suggest an amendment to Article V, cutting Congress entirely out of the amendment game, by declaring that any amendment adopted with identical language by the legislatures of 3/5ths of the states within a rolling 7 year period becomes effective without any action on the part of Congress. Perhaps a “dead Constitution” amendment underlining that the Constution only changes it’s meaning by formal amendment would be useful, too, to spike the federal “reinterpretation” scam.

  5. jim says:

    Brett’s revival of George Mason’s fear is right, of course. The Article “requires” (Madison’s word) Congress to call a Convention, but there’s no enforcement mechanism.

    It’s also worth pointing out that calling a Convention isn’t an automatic process that Congress can be deemed to have performed. A Call has to specify three things at least: a place, a time and composition. Suppose the Senate passes a Call for next month, in Dallas, State delegations to be appointed by their Governors; the House passes a Call for next year, in Burlington, delegates to be elected from each Congressional district at the general election. Neither House recedes. What then?

Comments are closed.