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How objections to an amendments convention got started

How objections to an amendments convention got started

This essay first appeared in the May 6, 2022 Epoch Times.

A handful of right-wing organizations have joined Soros-funded left-wing forces to prevent the states from addressing federal abuses in an amendments convention.

This is an odd alliance indeed, in which right-wing opponents employ arguments crafted for them by left-wing opponents.

Those arguments have little, if any, basis in fact. This essay documents their origins.

The Constitutional Background

The Constitution’s framers allowed the states to curb federal abuses by amending the Constitution without the consent of Congress.

Of course, any constitutional amendment must be ratified by three-fourths of the states (now 38 of 50). But to be ratified, an amendment first must be formally proposed. Proposal is either by Congress or by a state-run “convention for proposing amendments.” A convention for proposing amendments—a kind of “convention of the states”—meets when two-thirds of the state legislatures (34 of 50) demand one to address common topics.

Here’s an explanation from Tench Coxe, one of the most popular pro-Constitution writers during the ratification debates of 1787–1790:

“[T]wo thirds of the states can always procure a general convention for the purpose of amending the constitution, and … three fourths of them can introduce those amendments into the constitution, although the President, Senate and Foederal [sic] House of Representatives, should be unanimously opposed to each and all of them. …

“If then … the foederal government should prove dangerous, it seems the members of the confederacy [i.e., the states] will have a full and uncontroulable [sic] power to alter its nature, and render it completely safe and use­ful.

Who Could Oppose This?

For obvious reasons, advocates of an all-powerful central government dislike this procedure. Prominent opponents include D.C “swamp” groups funded by financier George Soros, such as Common Cause and the Center on Budget and Policy Priorities. These organizations have considerable national influence.

The conspiratorial right-wing organizations allied with the “swamp” on this issue have little national credibility. But they do have pull in a handful of states, such as Idaho and Montana. So they labor assiduously to prevent those states from joining the convention cause.

All opponents, left and right, employ the same key talking points. As explained below, the talking points derive from a liberal anti-convention campaign from 1963 to 1983. The talking points were composed by liberal opinion-makers and disseminated by the mainstream media.

The History

During the 1960s and 1970s, many conservatives and moderates—and, indeed, some liberals—became alarmed at the inability of Congress to balance its budget. Conservatives and moderates also became disenchanted with liberal activist Supreme Court rulings, including the abortion decision of Roe v. Wade.

These people sought constitutional amendments to address those issues. But they also understood that Congress would never propose such amendments. Accordingly, they asked the state legislatures to bring about conventions to propose a balanced budget amendment and to reverse Roe and some other SCOTUS rulings.

Not surprisingly, “progressive” activists and the media circled the wagons to protect Congress and the liberal Supreme Court. They understood that the suggested amendments were too popular to attack directly. Instead, therefore, they decided to frighten Americans away from the convention procedure.

The ‘Progressive’ Anti-Convention Claims

The 20th century anti-convention campaign relied on four claims, all of which convention opponents parrot today. They are:

  • A convention for proposing amendments is a “constitutional convention” that could re-write the entire Constitution at whim.
  • The convention process is a “mystery” plagued with unanswered questions.
  • The convention can be controlled by Congress. (Obviously, this largely contradicts the first two claims.)
  • James Madison opposed the amendments convention process.

None of these claims were grounded in reality. However, their authors were very well placed and the mainstream media were willing to disseminate what they said. Let’s see where each assertion came from.

First Claim: ‘An amendments convention is a “con-con” that can do anything’

Unlike some state constitutions, the U.S. Constitution does not authorize a future constitutional convention. Instead, it specifically limits an amendments convention to “proposing Amendments” to “this Constitution.”

In a 1963 article (pdf), Charles Black, a prominent liberal law professor, wrote that allowing the states to amend the Constitution would be a “disaster.” He said they might “change the presidency to a committee of three, hobble the treaty power, make the federal judiciary elective, repeal the fourth amendment, make Catholics ineligible for public office, and move the national capital to Topeka.” Black thereby promoted what has become known as the “runaway convention scenario.”

In a second article (pdf), published in 1972, Black slapped the label “constitutional convention” on an amendments convention. His primary thesis was that the momentum toward conservative amendments was a “national calamity.”

Other liberal opinion molders followed suit. For example, Kennedy speechwriter Theodore Sorensen asserted that a runaway convention might “amend the Bill of Rights … limit free speech … reopen the wars between church and state … limit the Supreme Court’s jurisdiction or the President’s veto power or the congressional warmaking authority.”

Left-wing writer Richard Rovere terrified the readers of the New Yorker magazine with the specter of a convention that might “reinstate segregation, and even slavery; throw out all or much of the Bill of Rights … eliminate the Fourteenth Amendment’s due process clause and reverse any Supreme Court decision the members didn’t like, including the one-man-one-vote rule; and perhaps for good measure, eliminate the Supreme Court itself.”

These croakings of doom were supported by almost no research. In fact, they were legally and historically absurd: They disregarded the explicit words of the Constitution: (1) The convention may only “propose” amendments to “this Constitution,” and (2) any proposals must be “ratified by … three fourths of the several States.” They also ignored history and case law, which tell us that the convention is limited to the subjects designated by the sponsoring states.

Nevertheless, these writers were well placed and the mainstream media (pdf) publicized their assertions. N-gram statistics confirm that during this time the buzz-words “con-con” (for constitutional convention) and “runaway convention” entered American discourse in a big way.

Second Claim: ‘The convention process is a mystery’

Anti-convention lobbyists sometimes appear in legislative halls distributing a list of supposedly “unanswerable questions” about the convention. Their goal is to persuade state lawmakers that the composition and protocols of an amendments convention are completely unknown.

In fact, nearly all the “unanswerable” questions have been answered by modern scholarship.

Their list derives from one composed in 1979 by liberal law professor Laurence Tribe (pdf). Around the same time, liberal academics Gerald Gunther and Walter Dellinger publicized similar questions. Not surprisingly, Tribe, Gunther, and Dellinger all had been Supreme Court clerks during the court’s most activist period.

I suspect that deeply conservative anti-convention lobbyists would be horrified to learn who created their list. They would be even more horrified to learn that one of its effects has been to impede the states from overruling Roe v. Wade.

Third Claim: ‘Congress Can Control an Amendments Convention’

This idea was invented by professor Black. He argued that Congress can employ its power under the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18) to manipulate the convention.

Like Black’s “runaway convention” talking point, this claim has no constitutional basis. After all, the framers inserted the convention procedure into the Constitution as a way to enable the states to bypass Congress. Neither the Necessary and Proper Clause nor any other constitutional provision grants Congress authority over the convention.

Nevertheless, other opinion-makers soon repeated Black’s assertion. One was liberal law professor William F. Swindler (pdf). Swindler was important because he became a special friend of Chief Justice Warren Burger, whom he apparently convinced to speak out against a convention.

Admittedly, Burger would not have needed much persuasion. He had, after all, supported the court’s decision in Roe v. Wade, which convention advocates were trying to overturn.

Fourth Claim: ‘James Madison opposed amendments conventions’

The claim that James Madison opposed amendments conventions is ridiculous: Not only was Madison the principal author of the Constitution’s amendment procedure, but he specifically recommended an amendments convention as a “final resort”—and much preferable to state “nullification” (pdf).

Opponents base this absurd argument on a single passage in a single letter, ripped entirely out of context. The context was that Madison was resisting a 1789 demand from New York State for a new convention to rewrite the entire Constitution. In Madison’s position, who wouldn’t?

But Madison’s letter actually doesn’t rule out future conventions. Moreover, in other correspondence, he said he would agree to a more targeted convention after “a very short period of time,” perhaps a year or two (pdf) (pdf).

This egregious misrepresentation of Madison’s views originated in a 1983 article penned by Arthur Goldberg (pdf). Goldberg was another liberal deeply immersed in the “swamp.” He was President John F. Kennedy’s Secretary of Labor and President Lyndon Johnson’s ambassador to the United Nations, and he served a short stint on the Supreme Court. On the court, he proved to be a fervent judicial activist.

A Concluding Comment

Myths are common in writings on constitutional law. Sometimes they derive from substandard research. Sometimes they are the product of political distortion. The “anti-convention” claims derive from both sources.

It’s difficult to avoid the conclusion that conservatives resisting a convention of the states have been cast into the role of what Vladimir Lenin called “useful idiots:” people who think they’re supporting their own cause, when they’re actually serving the very cause they oppose.

Rob Natelson