Taking Back America the Constitutional Way
Is it time for a convention of the states?
Summary: The Convention of States Project aims to curb the powers of the long out-of-control federal government by pursuing a state-initiated convention to amend the Constitution. No such convention has ever occurred, although Article V of the Constitution permits the process. Many observers may suspect that this push is a fringe effort with little support. Yet serious scholars have begun to support it, and the group behind it has considerable—and growing—grassroots support.
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America is a mess. No matter who is in power, the government of the United States keeps getting bigger and less accountable to those it is supposed to serve. Elections, some opine, are largely meaningless. The nation’s unpitying drift to the Left and to increasingly centralized, sclerotic, Western European-style governance with its cradle-to-grave welfare states seems unstoppable. To patriots—that is, to people who support limited government, individual rights, fiscal responsibility, and the rule of law, the future seems bleak.
It was never supposed to be this way.
The Constitution was supposed to protect Americans from what its principal architect, James Madison, termed in Federalist 48 an “ELECTIVE DESPOTISM,” spelling the phrase in all-caps so it screamed out from the page.
Today some observers fear we’re sliding into just what Madison hoped to avoid. “The Statists have been successful in their century-long march to disfigure and mangle the constitutional order and undo the social compact,” author, broadcaster, and Landmark Legal Foundation president Mark Levin writes in his 2013 book, The Liberty Amendments.
“The nation has entered an age of post-constitutional soft tyranny,” he writes (italics in original). To explain the concept of “soft tyranny,” Levin quotes that great observer of American society, Alexis de Tocqueville, who warned in his classic study Democracy in America (1835) that a declining United States could produce a new kind of petty tyranny never before seen:
It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.
Tocqueville accurately predicted America’s future, Levin argues. In modern America:
Social engineering and central planning are imposed without end, since the governing masterminds, drunk with their own conceit and pomposity, have wild imaginations and infinite ideas for reshaping society and molding man’s nature in search of the ever-elusive utopian paradise. Their clumsy experiments and infantile pursuits are not measured against any rational standard. Their piousness and sanctimony are justification enough.
Congress is out of control, Levin writes, operating “not as the Framers intended, but in the shadows, where it dreams up its most notorious and oppressive laws, coming into the light only to trumpet the genius and earnestness of its goings-on and to enable members to cast their votes.” Anyone who watches C-SPAN, with its gavel-to-gavel coverage of fat-cat elected officials endlessly congratulating themselves for their selfless public service, knows this is true.
Congress unconstitutionally delegates its powers to “a gigantic yet ever-growing administrative state that, in turn, unleashes on society myriad regulations and rules at such a rapid rate the people cannot possibly know of them, either—and if, by chance, they do, they cannot possibly comprehend them.”
What was supposed “to be a relatively innocuous federal government, operating from a defined enumeration of specific grants of power, has become an ever-present and unaccountable force. It is the nation’s largest creditor, debtor, lender, employer, consumer, contractor, grantor, property owner, tenant, insurer, health-care provider, and pension guarantor.”
The federal government lords over both the states that came together in 1776 to form the United States and also those that were subsequently admitted to the Union. It routinely impinges on and overrules states’ “rights”—a misnomer because they are actually powers—interfering in the lives of the people of those states.
The states’ enfeeblement is reflected in the way no one calls this now grammatically singular sovereign entity these United States anymore. It is always the United States today. The states are treated as afterthoughts.
This goes against the intentions of the Framers, who “rightly insisted on preserving the prominent governing role of the state legislatures as a crucial mechanism to containing the power” of the federal government, Levin writes. “In fact, other than the limited, specified powers granted to the federal government, the states retained for themselves plenary governing authority.”
In Federalist 45 Madison argued, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
States, Levin admits, are not “perfect governing institutions.” Many “are no more respectful of unalienable rights than is the federal government,” but the Framers intended that the states retain for themselves “significant authority to ensure the republic’s durability.” The Constitution aimed to diversify authority “with a combination of governing checks, balances, and divisions, intended to prevent the concentration of unbridled power in the hands of a relative few imperfect people.”
Over time, various government-limiting mechanisms in the Constitution that were intended as vital elements in the self-correcting American system fell into disfavor and disuse. As the republic aged, each successive generation cared slightly less about the contents of the Constitution, especially the parts that limited governmental power. Eventually, thanks largely to leftists, we reached a point at which Americans stopped being taught civics almost altogether, and interest in constitutional provisions came to be viewed as a quaint, anachronistic waste of time, like the false science of alchemy. The Left’s relentless push for government-provided security has over time eroded the support that many Americans feel for liberties and rights that the Founders took for granted.
The desire for bold reforms
Drastic change is needed. The American people agree. This is why they elected to the White House a flamboyant, eccentric political novice who promised bold reforms. They want the Washington, D.C. “swamp” drained. They’re fed up and for good reason.
As America moves farther and farther from her founding principles, elections don’t count for much. “We keep changing personnel and hoping it will fix the problem but the problem is structural,” says Mark Meckler, president of Citizens for Self-Governance, the parent organization of the Convention of States Project.
“So if we put good people in, we still get bad results. We have a fiscal house that is a disaster. The federal government is out of control. It will never rein itself in.”
The fact that the federal government’s books are fiction doesn’t help. “There is nothing real about government accounting,” says Meckler. “We need a constitutional amendment to impose generally accepted accounting principles on the feds.
Even when spending cuts are promised, overall federal spending continues on its upward trajectory because Official Washington operates in the make-believe world of “baseline budgeting.” According to this perverse method of accounting, both a cut and an increase may count as cuts.
Confused? You’re supposed to be.
Baseline budgeting allows politicians to pretend to reduce expenditures while they actually boost expenditures. As Citizens Against Government Waste explains, in D.C. jargon, “The baseline includes automatic adjustments for inflation and anticipated increases in program participation. Baseline, or current services, budgeting, therefore builds automatic, future spending increases into Congress’s budgetary forecasts.” So, if the federal budget is slated under the rules of baseline budgeting to rise by, say, $1 trillion, but it rises only $750 billion, the Congressional Budget Office will claim the budget has been “cut” by $250 billion. The “cut” is really just a reduction in projected spending.
When I was a reporter in the D.C. bureau of The Bond Buyer newspaper, I regularly had run-ins with analysts at the left-wing Center on Budget and Policy Priorities (CBPP). An article I wrote in 2004 illustrates the cognitive dissonance that some Washingtonians can achieve. At that time President Bush proposed appropriating $16.9 billion in Section 8 housing voucher subsidies for fiscal 2005, which was higher than the $16.4 billion appropriated the previous year.
A sane person would look at the two figures and conclude that $16.9 billion was $500 million more than $16.4 billion. But the leftists at the CBPP argued that after taking into account inflation and other factors, the $16.9 billion would be a funding cut. Instead of being honest and saying that they believed the $500 million wasn’t enough of an increase, CBPP analysts lied, claiming the increase was a cut.
Official Washington radiates this kind of entitlement mentality, and that ugly sentiment shows no signs of abating. Unless, perhaps, a state-initiated constitutional convention takes place that fundamentally changes the way federal officials view your tax dollars.
The amending process
The change that needs to happen could be accomplished by popular unrest generated by community organizers, by civil war and secession, or it could be accomplished peacefully by following an orderly, constitutionally prescribed process.
Amendments to the Constitution have been relatively rare, and a state-convened convention to propose amendments has never occurred, yet the Constitution itself allows for such drastic adjustments, and many sober jurists and statesmen have argued that the amending process can help if the nation begins to become disordered. Consider, for example, the views of Justice Joseph Story (1779-1845), a Supreme Court justice best known for writing the opinion in the Amistad case that Steven Spielberg immortalized in his movie of the same name. Story was also the author of the magisterial Commentaries on the Constitution (1833) and the son of a Boston Tea Partier.
Article V of the Constitution serves, Justice Story said, as a “safety valve” for American society because it allows changes to be made to the structure of the nation’s great national charter (Commentaries on the Constitution 3:§§1821-24). Story wrote that the need for an amending mechanism was self-evident:
A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people.
Similarly, the judicious St. George Tucker (1752-1827) — who published an influential early American version of Blackstone’s Commentaries and supported the emancipation of slaves — praised the Constitution because it “provides a safe, and peaceable remedy for its own defects, as they may from time to time be discovered” (Blackstone’s Commentaries 1: App. 371-72):
A change of government in other countries is almost always attended with convulsions which threaten its entire dissolution; and with scenes of horror, which deter mankind from any attempt to correct abuses, or remove oppressions until they have become altogether intolerable. In America we may reasonably hope, that neither of these evils need be apprehended; nor is there any reason to fear that this provision in the constitution will produce any degree of instability in the government; the mode both of originating and of ratifying amendments, in either mode which the constitution directs, must necessarily be attended with such obstacles, and delays, as must prove a sufficient bar against light, or frequent innovations.
America need not follow a violent, disruptive path in order to correct national problems.
In Federalist 43, Madison made the case to the American people for Article V’s formula for amending the Constitution. The at-the-time unratified Constitution, he wrote, “equally enables the general [today we would say, “federal”] and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other.”
The people of the several states, represented by their state legislatures, needed to approve the original Constitution in order for it to take effect. This is as it should be, Madison wrote. The people “are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived” (Federalist 49).
Amendments to the Constitution should also have to be approved by the states: “it seems strictly consonant to the republican theory,” Madison continued, “to recur to the same original authority”—that is, We the People—“not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”
Article V empowers Congress to propose constitutional amendments, something it has done dozens of times. But it also contains a long-ignored provision that requires Congress to call a constitutional convention when the legislatures of two-thirds of the states—today, 34 of the 50 states—demand it, something that has never happened.
The actual wording of Article V states:
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.
To come into force, the amendments would have to be ratified either by 38 state legislatures or by 38 state constitutional ratification conventions. Congress gets to decide which method of ratification will be used.
The provision allowing states to call a convention to amend the Constitution is “excellent,” St. George Tucker wrote, even though he felt it may never be used:
The latter will probably never be resorted to, unless the federal government should betray symptoms of corruption, which may render it expedient for the states to exert themselves in order to the application of some radical and effectual remedy.
According to Meckler, the day Tucker said would likely never arrive has come, which makes a convention of states necessary.
“We are trying to throttle back the authority of the federal government,” Meckler said in an interview. “This is the only way to erase 115 years of ‘Progressive’ gains.”
Levin concurs that only a constitutional overhaul can fix America. He supports the state-initiated amendment process to limit the power and jurisdiction of the U.S. government that the Convention of States Project has launched.
Using plain, non-legalistic language, Levin writes that
…Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might.
“The Founders gave us a legitimate path to save our liberty by using our state governments to impose binding restraints on the federal government,” the Convention of States Project advises on its fact- and resource-rich website. “We must use the power granted to the states in the Constitution.”
Since it was launched in mid-2012, COS has made steady progress. On May 12, 2017, Missouri became the 12th state to adopt a Convention of States resolution. The measure, spearheaded by state Sen. Mike Kehoe, a Republican who represents Jefferson City, demands an Article V Convention of States to propose constitutional amendments “that impose fiscal restraint on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for federal officials and members of Congress.”
“This is a big deal,” Mark Levin announced on his radio show. “We’re more than a third of the way there.”
“The American people are growing weary of a federal government that is operating outside of its Constitutional bounds,” Keith Carmichael, Missouri state director for the Convention of States Project told Conservative Review.
“Neither party represents the people, but rather outside influences that help them get re-elected, so by calling a Convention of States under Article V, the states can recalibrate the balance between the federal government and return power back to the people—not to mention that a convention of this magnitude would be the biggest civics lesson of our lifetime.”
Days before Carmichael spoke, Texas became the 11th state to approve the COS-sponsored resolution.
The other ten states to approve the group’s Article V resolution are Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Louisiana, North Dakota, Oklahoma, and Tennessee (“Texas joins call for Convention of States,” WND, May 9, 2017).
Roughly 125,000 COS activists worked for more than three years to pass the COS Article V Convention resolution in Texas. They conducted more than 400 meetings around the state to educate citizens and legislators about the Article V Convention process and the power they have to keep the federal government in check.
Meckler stressed the importance of educating people about the amendment process. “I would say the number one obstacle is just ignorance of the process,” he said. “The second clause of Article V is something that’s never been used before in American history, and there’s a lot of bad information and fearmongering floating around out there that’s spread primarily by the radical left, and people have bought into it. So overcoming that history of fearmongering is definitely not easy.”
What the naysayers say
On the political Right, the late Phyllis Schlafly’s Eagle Forum and the John Birch Society oppose convoking a convention of the states.
In December 2008, Schlafly wrote a column titled, “Con Con Is a Terrible Idea”:
We already have a U.S. Constitution that has withstood the slings and arrows of outrageous fortune for more than two centuries, and we don’t need a new constitution. There is nothing wrong with the one we have except that politicians are not obeying it and judges are indulging in too much activism.
The idea that adding new words to the Constitution to require balancing the federal budget, or to give President Barack Obama a line-item veto so he can veto the extravagant spending he has already endorsed, is delusionary. The only thing more outlandish is the fanciful notion that a 2009 Con Con could adopt such requirements while avoiding other mistakes.
Outside the convention hall, left-wing “demonstrators would hold court demanding constitutional changes.”
These would be staged by gay activists and their opponents, pro-abortionists and pro-lifers, radical feminists, the environmentalists, gun control advocates, animal rights extremists, D.C. Statehood agitators, those who want to relax immigration and those who would restrict it, mortgage defaulters, and the unions—all demanding consideration of amendments to recognize their claimed rights.
It “would be a prescription for political chaos, controversy, confrontation, litigation, and judicial activism,” Schlafly wrote. “Just about the only thing we can predict with certainty is that it could not be secret from the media and the public, as was the original 1787 Constitutional Convention.”
The John Birch Society worries, in its words, that a “Con-Con” could become what critics call a “runaway convention,” “which could mean the end of over two centuries of security for our rights and freedoms as Americans.”
Arguably, this idea that a convention of the states would likely spin out of control originated on the Left. In 1988 the late Chief Justice Warren Burger wrote, “There is no effective way to limit or muzzle the actions of a Constitutional Convention. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.”
Creative left-wingers now try to claim the late Associate Justice of the Supreme Court, Antonin Scalia, a conservative and an originalist, as an ally in their fight against a convention of the states.
For example, the website of the leftist, George Soros-funded Center on Budget and Policy Priorities, contains a Jan. 18, 2017, article by Michael Leachman and David A. Super. The title of the piece sums up their perspective: “States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues[.]”
Of course, that’s the whole purpose of the state-initiation clause of Article V. This extraordinary remedy was intended to give the people of the 50 states an opportunity to do an end-run around career politicians. The states, by which Leachman and Super mean the entrenched politicians, are not supposed to have control of a convention of the states. The politicians are, after all, part of the problem.
In the article, the authors appear to misrepresent the views of Scalia by taking a vague statement that the famously witty jurist appeared to offer as a joke during a panel discussion alongside his friend and fellow high court Justice Ruth Bader Ginsburg.
A number of prominent jurists and legal scholars have warned that a constitutional convention could open up the Constitution to radical and harmful changes. For instance, the late Justice Antonin Scalia said in 2014, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
But Scalia’s views are not as clear-cut as the authors would have us believe. To understand what Scalia meant, consider the context of the remarks. He made them April 17, 2014, at the National Press Club in Washington, D.C., during a panel discussion on the First Amendment.
Here is the relevant part from the transcript prepared by Federal News Service:
KALB: Here is a question from Seth Dawson (sp) of the office of Congressman Denny Heck. Justice Stevens recently suggested a constitutional amendment to modify the Second Amendment. If you could amend the Constitution in one way, what would it be and why? Justice Scalia?
JUSTICE SCALIA: I certainly would not want a constitutional convention. I mean, whoa. (Laughter.) Who knows what would come out of that? But if there were a targeted amendment that were adopted by the states, I think the only provision I would amend is the amendment provision. I figured out at one time what percentage of the populace could prevent an amendment of the Constitution. And if you take a bare majority in the smallest states by population, I think something less than 2 percent of the people can prevent a constitutional amendment. That’s—it ought to be hard, but it shouldn’t be that hard.
Scalia was a strong supporter of the Second Amendment. The question came from a staffer in the office of left-wing Rep. Denny Heck, a Democrat from Washington State. Heck participated in the Democrats’ June 2016 publicity stunt in which they conducted a sit-in on the floor of the House of Representatives to demand more gun control. The gimmicky event, organized by grandstanding leftist Rep. John Lewis of Georgia, received positive saturation coverage by the mainstream media, which largely depicted the floor occupiers as heroic crusaders.
Given that Scalia was a keen follower of current affairs, is it any surprise that he would be startled enough by the question about enhanced gun-grabbing to say “whoa”? When he said, “I certainly would not want a constitutional convention,” was he thinking in general terms, or exclusively regarding the Second Amendment? In any event, the concluding part of Scalia’s remarks on this occasion clearly indicated that he did not think a tiny minority of Americans should be able to prevent the Constitution from being amended.
Years earlier Scalia was unequivocally in favor of having a convention of the states.
During a panel discussion on Article V at the American Enterprise Institute in 1979, then-law professor Scalia was enthusiastic about the prospect of a state-initiated convention to consider constitutional amendments. He gently mocked a questioner who raised concerns about “an unlimited convention.”
“It is possible,” he said, “that the Congress tomorrow might pass a law abolishing social security as of the next day, or eliminating Christmas. Such things are possible, remotely possible.” He continued:
I have no fear that such extreme proposals would come out of a constitutional convention.…it really comes down to whether we think a constitutional convention is necessary. I think it is necessary for some purposes, and I am willing to accept what seems to me a minimal risk of intemperate action. The Founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power. The Founders foresaw that and they provided the convention as a remedy. If the only way to get that convention is to take this minimal risk, then it is a reasonable one.… In any case, I do not have any great fear of an open convention, since three-quarters of the states do have to ratify what comes out of it.
The Left’s Fear
Unlike Scalia, left-wing activists are almost uniformly terrified at the prospect and are beginning to take seriously the threat that the Convention of States Project poses to the big-government status quo. They are responding with characteristic hysteria. For example, Jacob Sugarman wrote an article with the headline, “Convention of the States: Is a billionaire-funded coup to rewrite the Constitution on the verge of happening?” (Salon, March 25, 2017).
Sugarman warned that:
A “Convention of the States” has never been invoked before, but Republicans and Koch-backed organizations like Citizens for Self-Governance have been salivating over the possibility for years, even holding dress rehearsals in Washington, D.C., with representatives from across the country. With the federal deficit presently hovering just below $20 trillion, their ostensible plan is to add a balanced budget amendment. This alone would likely shred the country’s meager social safety net, but as Assembly Minority Leader and Kenosha Democrat Peter Barca warns the Wisconsin State Journal, a constitutional convention could put citizens’ very rights “up for grabs.”
Scot Ross, executive director of liberal advocacy group One Wisconsin Now, puts it more bluntly: “The balanced budget talk is a fig leaf to let them change America into a right-wing alternative universe.”
In April of this year, the Left went to war against a constitutional convention as 230 left-wing groups, led by Common Cause, signed a letter warning of the supposed dangers posed by a convention of the states (“More Than 200 Organizations Oppose Calls for New Constitutional Convention, Warn of Dangers”).
“A constitutional convention call, even on a single issue will become a Pandora’s box—once it’s open there will be no controlling where it goes, putting every Americans’ basic rights on the auction block,” said Karen Hobert Flynn, president of Common Cause. “The wealthy special interests who are funding this push do not share the best interest of the American people, and there are no rules to limit their influence on what could be brought up once a convention is convened.”
If Ms. Flynn and Common Cause are concerned about “wealthy special interests” who don’t share the best interests of the American people, they may want to reconsider the co-signers of their letter (or ponder the irony of their own group’s motto: “Holding Power Accountable”). The groups joining Common Cause in opposition to the convention include the nation’s most powerful labor unions, which are special interests that use their wealth to swamp the lists of the largest political donors in America, including the Service Employees International Union (SEIU) and the AFL-CIO, as well as unions that represent government employees who live off of their fellow citizens’ tax dollars: the National Education Association; the American Federation of State, County and Municipal Employees; and their friends at AFSCME Retirees.
Then there are the letter’s co-signers who are pillars of the political crusade to eliminate the constitutional distinction between U.S. citizens and aliens: Dream Defenders, Mi Familia Vota, and National Council of La Raza Action Fund. And the co-signers whose very names indicate that their highest priority is protecting their government entitlements at all costs: Center for Medicare Advocacy, National WIC Association, and Social Security Works. And the co-signers who exist to press for more federal funding under all circumstances, whether or not the Constitution grants the federal government authority to meddle in the area, including the Center on Budget and Policy Priorities and the Children’s Defense Fund. And the co-signers which are all-purpose left-wing pressure groups, including Daily Kos, Center for American Progress, and ProgressNow. And the co-signer People for the American Way, whose vicious campaign against the Supreme Court nomination of Judge Robert Bork gave rise to the term “borking,” which may be defined as “smearing judicial nominees who respect the Constitution and the role of judges it prescribes.”
And yet, despite all this evidence that the groups involved have little respect for the constitutional order our Founders established, the press release announcing the left-wing coalition against the convention of states quotes Robert Greenstein, president of the Center on Budget and Policy Priorities, warning that “The implications of a Constitutional Convention are staggering. Our country faces enough problems and division. We don’t need to add to them and inflame an already toxic political environment by placing at risk the constitutional structure that has served us well for more than two centuries—and heading into dangerous, unknown territory by calling a convention to rework the Constitution. Leading legal scholars from across the political spectrum agree that once convened, the scope of the convention in seeking to rewrite the Constitution could not be limited.”
This fear of a “runaway convention” is often raised by skeptics, but it seems misplaced. Justice Antonin Scalia, as noted above, didn’t seem too concerned about it.
Former constitutional law professor Rob Natelson, who runs the Article V Information Center at the Denver-based Independence Institute writes that the “runaway scenario” has “almost no basis in history or law,” even though “it has long frightened Americans away from using the Constitution’s chief mechanism for bypassing Congress and curing our dysfunctional federal government.”
In the 1960s and 1970s, “leading establishment liberals, such as [President John F.] Kennedy speechwriter Theodore Sorensen and Kennedy confidant Arthur Goldberg, capitalized on that confusion by raising the runaway specter.” Their plan was “to scare people away from using the Constitution’s convention mechanism,” in order to “protect from reversal by constitutional amendment several Supreme Court decisions that had proved highly controversial—among them Roe v. Wade, the case that legalized abortion nationwide. Second, they sought to block growing momentum for amendments imposing term limits and requiring a federal balanced budget.”
An n-gram search in Google Books to find out when the phrase ‘runaway convention’ arose…[showed] the term was almost unknown until around 1960—when it suddenly became extraordinarily common. Usage rose to counter rising popular demand for constitutional amendments. In the 1990s, as momentum for amendments abated, so also did resort to the runaway scenario. Another n-gram search shows that the abbreviation “con con,” widely used by convention opponents, also was invented around 1960.
Robert Biggerstaff, a colleague of Natelson, notes, “In the 1950s and 60s progressives actively sought change through courts when it was not possible through legislatures. This was an express tactical choice to seek through judicial activism what was stymied by legislatures” (“How progressives promoted the ‘runaway convention’ myth to save judicial activism,” by Robert Natelson, The Hill, May 7, 2017).
The Convention of States Project conducted a “historic simulation” at Colonial Williamsburg, Virginia, on Sept. 21-23, 2016, that failed to turn into a runaway convention. It was attended by 137 delegates representing 32 states across the nation.
The Convention passed six proposed amendments:
- Forbid the public debt to be increased except upon a recorded vote of two-thirds of each house of Congress
- Set term limits on Members of Congress
- Limit federal overreach by returning the Commerce Clause to its original meaning
- Limit the power of federal regulations by giving Congress an easy override
- Require a super majority to raise federal taxes and repeal the 16th Amendment (which permits a federal income tax)
- Give the states (by a three-fifths vote) the power to abrogate any federal law, regulation, or executive order.
“The events at Williamsburg will be remembered as a turning point in history,” said COS co-founder Michael Farris. “The spirit of liberty and self-government has been reignited.”
The Convention of States Project offers the following examples of amendment topics that could be discussed at a convention of states:
- A balanced budget amendment
- A redefinition of the General Welfare Clause (the original view was the federal government could not spend money on any topic within the jurisdiction of the states)
- A redefinition of the Commerce Clause (the original view was that Congress was granted a narrow and exclusive power to regulate shipments across state lines–not all the economic activity of the nation)
- A prohibition of using international treaties and law to govern the domestic law of the United States
- A limitation on using Executive Orders and federal regulations to enact laws (since Congress is supposed to be the exclusive agency to enact laws)
- Imposing term limits on Congress and the Supreme Court
- Placing an upper limit on federal taxation
- Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes
Of course, these are merely examples of what would be up for discussion. The convention of states itself would determine which ideas deserve serious consideration, and it will take a majority of votes from the states to formally propose any amendments.
The movement is surging
A frequent complaint by conservatives is that conservative movements are not well-organized. This criticism does not apply to the Convention of States Project. It is currently organized and active in all 50 states and claims to have more than 2 million volunteers, supporters, and advocates determined to bring the federal government’s abuse of power to an end. According to COS,
the grassroots is the key to calling a successful convention. The goal is to build a political operation in a minimum of 40 states, getting 100 people to volunteer in at least 75% of the state’s legislative districts. We believe this is very doable. But only through the support of the American people will this project have a chance to succeed.
The nationwide COS movement enjoys the support of a high-profile ally: straight-shooting former Sen. Tom Coburn (R-Okla.), who serves as a senior adviser to the Convention of States Project. Coburn argues for a convention of the states in his new book, Smashing the DC Monopoly: Using Article V to Restore Freedom and Stop America’s Runaway Government.
Groups listed on the COS website as endorsers are the Association of Mature American Citizens, U.S. Term Limits, and the Texas Public Policy Foundation.
Among the individuals listed are Texas Gov. Greg Abbott (R); former Arkansas Gov. Mike Huckabee (R); former Alaska Gov. Sarah Palin (R); former Louisiana Gov. Bobby Jindal (R); Sens. Marco Rubio (R-Fla.) and Ron Johnson (R-Wisc.); former Congressman Lt. Col. (Ret.) Allen West (R-Fla.); Fox News terrorism analyst Lt. Col. Bill Cowan, USMC (Ret.); and broadcaster Sean Hannity.
So what’s next? “If we don’t fix this, civil war is the trajectory,” according to Meckler. Things have gone too far. “We have nationalized so many decisions.”
The possibility of a second civil war in the U.S. is not hyperbole. The frightening violence the Left unleashed on society during the Obama era—Occupy Wall Street and Black Lives Matter—and during Donald Trump’s campaign, then the transition period, and now during his presidency, is just a taste of what these Saul Alinsky-inspired activists have in store for us.
“The question that is facing America today is simply, who decides?” Meckler says.
America, you have a choice to make.
Matthew Vadum is senior vice president at the Capital Research Center. His next book, Team Jihad, has been published by the Center for Security Policy.