Politicians have perfected the art of not doing their jobs.
Politicians have perfected the art of not doing their jobs.
‘I f you ever need anything, please don’t hesitate to ask someone else first,” Kurt Cobain growls in Nirvana’s 1993 ode to curmudgeons, “Very Ape.”
It is a mantra that should be engraved on the U.S. Capitol building, where it now seems the most effective politicians are the ones who most skillfully push important work onto others. The House saddles the Senate with bills that will never pass and vice versa. When legislation does pass, it is intentionally vague, so the executive branch has to decide how it is implemented. And administrations have no incentive to get it right, knowing new regulations will almost certainly be reviewed by the courts.
It is why we repeatedly hear calls from both Republicans and Democrats for a convention of states, which would crack open the U.S. Constitution the way a heart surgeon opens a patient’s chest. Legislating is hard work and often gets in the way of filming viral media stunts, so why not offload the responsibility of governing to a convention of delegates who won’t have to face voters every few years?
Article V of the Constitution requires Congress to call forth a new convention as soon as two-thirds of the states (currently 34) request it. This convention would propose new constitutional amendments, which “shall be valid to all intents and purposes” of the Constitution as long as they are ratified by the legislatures of three-fourths of the states.
The “Article V Convention” enthusiasts say they could create a process that allows the delegates to consider only one limited question. Republicans, for instance, think they could use the process to consider a balanced-budget amendment to the Constitution.
While Article V is notable for the process it creates, it is more remarkable for what it leaves out. There is nothing in the provision that dictates what topics could be considered or who the people considering them would be. There is no process for limiting the scope of the amendments or deciding who would be attending the proceedings on behalf of the states. Does each state get one vote, or do the larger states get more votes? Who decides?
And once the vandals have broken into the Constitution, they will have full access to the document’s internal wiring. Or, as the late Chief Justice Warren Burger wrote, “Congress might try to limit the agenda to one amendment or to one issue, but there is no way to assure that the Convention would obey.”
For instance, Democrats have long eyed the First Amendment like a dog staring at a bowl of popcorn. They’ve spent decades plotting to overturn the Supreme Court’s Citizens United decision, which codified the idea that money equates to campaign speech. Conversely, populist forces on the right are now pushing a novel brand of free speech that would force private businesses to host content those platforms find disagreeable (like dangerous lies from former and future presidents, for instance).
So, while a balanced-budget amendment might be the proverbial foot in the door, who knows what would happen to free speech rights when the horse-trading begins? To return to the heart surgeon metaphor, the patient may be going in for an angioplasty but could leave the hospital with a foot amputated, two glass eyes, and a baboon liver.
Does anyone look at the fatuous dimwits running each party and think now is really the time we should be tinkering with a document that has served America well for the last 237 years? (Granted, it took a Civil War to deliver the promise of America to everyone, but it was through constitutional means that the 13th, 14th, and 15th Amendments were adopted.)
Just a few years ago, Donald Trump and his lawyers were pushing an insane legal theory that the vice president could single-handedly overturn a presidential election. Democrats right now are arguing that the Equal Rights Amendment has actually been ratified and President Joe Biden could add it to the Constitution simply by having the U.S. archivist certify and publish it. (Americans, genuflect to your all-powerful archivist, Colleen Shogan — who has refused!)
Of course, allowing convention delegates to rummage around America’s founding document as if it is the Wonka Chocolate Factory is simply a way for Congress to circumvent doing the things representatives and senators used to do.
Want a balanced budget? Then pass one. Do you want to apply Roe v. Wade’s abortion policy nationwide? Then make an argument and pass a law. Think the Second Amendment is outdated and should apply only to single-shot muskets? Spend more time convincing your constituents and less time yelling at speakers in hearings to create a viral social media clip.
Nevertheless, the prospect of Republicans calling for a constitutional convention has Democrats so spooked that some politicians are trying to revoke their states’ request for an Article V convention. Scott Wiener, a Democratic state senator in California, has introduced legislation to rescind the state’s seven convention calls, most recently in 2023 when Governor Gavin Newsom called for a convention to address gun violence.
A call for a convention stays on the ledger forever, and some requests date back 150 years. The list of reasons to request a convention reads like an American history book — for instance, over 20 states have called for a convention to outlaw polygamy, and six states have called for an amendment to form a world government. Arkansas and Florida have called for a mechanism for states to override Supreme Court decisions, and in 1965, Mississippi requested an amendment to declare communism illegal. In 2016, Texas governor Greg Abbott introduced nine amendment proposals, some of which are tantalizing, like limiting how broadly courts are allowed to interpret the commerce clause.
But again, even a convention called for a good reason doesn’t guarantee its output will be ideal. Like a late-night drunken romance, the morning always brings a starker reality, as the possibility is ever-present of a “runaway” convention where insane ideas like restricting press freedom, allowing states to overrule the Supreme Court, or baseball’s “golden at-bat” rule are taken seriously.
Of course, one of the reasons politicians are so thirsty to hold a new convention is because it is so difficult to amend the Constitution through the congressional process. A two-thirds vote of both houses and ratification by three-fourths of the states is nearly impossible, given it takes only 13 states to tank an amendment. (It often seems that half of America’s states would be willing to go to war with the other half, so near-unanimity is a pipe dream.)
But this is an argument for making the amendment process more manageable, not for circumventing it. Congress can propose an amendment to Article V that lowers the ratification threshold to two-thirds of the states. In an Inception-like twist, 38 states would have to ratify an amendment allowing only 34 states to ratify an amendment (indicating that some of the Founders may have spent a little too much time at George Washington’s hemp farm.)
And, of course, even the work product of an Article V convention would have to be passed by 38 state legislatures. But this makes the point — why are politicians wasting time talking about conventions that are never going to happen? Because currently, the work to which Congress is dedicated is making sure Congress has no work.