The Ultimate Argument Against an Article V Constitutional Convention

01/21/2013
       
The Declaration of Independence The Declaration of Independence Shutterstock

An Article V constitutional convention would have the inherent right to be a "runaway" convention.

The John Birch Society has led the movement to prevent a constitutional convention (Con-Con) for over three decades now. Most conservative proponents of a Con-Con have claimed that they only want to bring on a constitutional convention for the limited purpose of proposing one or a few amendments, such as a balanced budget amendment, a national debt relief amendment, term limits, etc. We have maintained that any such constitutional convention could not be limited as to which amendments would be considered and how many, and therefore could become a “runaway convention.”

Since neither side, with a few notable exceptions, on this Con-Con issue wants a runaway convention, much of the rhetoric centers on the likelihood of a runaway Article V constitutional convention. In recent years one prominent Con-Con proponent has argued that a close historical study of how states chose and instructed delegates to various conventions in the founding era, including the Constitutional Convention of 1787, and how these conventions were conducted, proves that there is no danger of a runaway constitutional convention in our day.

This argument is not very persuasive. How can we be sure that the customs and procedures of 200 years ago regarding constitutional conventions will be adhered to today when large portions of the Constitution itself are no longer obeyed?

However, there is a more fundamental argument against convening a constitutional convention. Take a careful look at this passage in the early portion of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

You can break this passage down into three parts: (1) Our rights come from God; (2) Governments, such as our present federal government as defined by the Constitution, are instituted to secure our rights; and (3) Whenever any form of government fails to secure our rights, it is the right of the people to alter or abolish it, and to institute new government.

Since “the right of the people to alter or abolish [our government], and to institute new government” is proclaimed in a key portion of the Declaration of Independence, and since this right was reaffirmed eleven years later when the Constitution opened with “We the People of the United States, in Order to form a more perfect Union ... do ordain and establish this Constitution for the United States of America,” you could say this right is part of our national DNA.

This right is referred to as the theory of popular sovereignty. Moreover, this theory wasn’t just specific to Jefferson’s thinking. It was a consensus notion among the Founding Fathers. Consider for example what Edmund Pendleton, President of the Virginia ratifying convention, said to the delegates on June 5, 1788:

We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then?... Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.

Although there are some ambiguities in this passage, Pendleton appears to be assuring the delegates that if the Constitution turned out not to secure happiness for Americans, then it could be reformed by the “easy and quiet” methods of Article V. However, if the Article V process were to be subverted by “our servants,” the state and federal legislators, then We the People would assemble in convention, wholly recall and reform the delegated powers of the Constitution, and punish the offending servants.

Given the right of popular sovereignty as expressed in the Declaration of Independence and the Constitution and agreed to virtually unanimously by the Founding Fathers, how could any limits be placed on a convention for proposing amendments representing the sovereign people (a.k.a. a constitutional convention) convened according to Article V?

So, the ultimate argument against convening an article V constitutional convention is that based on the theory of popular sovereignty of the Founding Fathers, any such convention of the sovereign people would have the inherent right to propose any changes to the Constitution that they deemed necessary to properly secure our rights, and even the right to specify the method of ratification of these proposed changes, just as the Constitutional Convention of 1787 did.

Therefore, we can say that we oppose the calling of an Article V constitutional convention because such a convention of the sovereign people would have the inherent right to become a so-called runaway convention and propose whatever amendments to our Constitution it deemed necessary to secure our rights.

If you’d like to read in-depth about the theory of popular sovereignty in American history, Google “Philadelphia Revisited” (1988) and “Popular Sovereignty and Constitutional Amendment” (1995), two articles by one of the leading contemporary experts on the topic, Akhil Reed Amar, Sterling Professor of Law at Yale Law School. If you do read these articles, be aware that Professor Amar is an enthusiastic proponent of combining the right of popular sovereignty and the democratic principle of simple majority vote to enable rapid changes in our Constitution away from our original Republic and toward a Democracy.

(This article was first published as "The Ultimate Argument Against a Con-Con" in the November 2012 JBS Bulletin; and is reposted here with permission.)

(Learn more about Article V constitutional conventions and then take action at "Choose Freedom — STOP A CON-CON.")

(The Declaration of Independence image via Shutterstock.)

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