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Is it “too late” for an amendments convention?

Is it “too late” for an amendments convention?

After years of saying that the time for an Article V amendments convention is not yet ripe, some purportedly conservative opponents now claim the battle for America is lost and it’s just too late to bother.

This is perhaps the stupidest objection yet.

They started with the “runaway convention” line. It had no historical or factual basis, but one could excuse those parroting it because liberal opinion makers had been trumpeting that objection for years and before 2010 there was little scholarship rebutting it.

When scholarship finally discredited the runaway convention bugaboo, “conservative” opponents shifted ground. They raised the new claim—inconsistent with the “runaway” scenario and also borrowed from liberal sources—that Congress could control the convention under the Constitution’s Necessary and Proper Clause. It soon appeared, however, that this statement was contradicted, directly and indirectly, by over 200 years of constitutional law.

The next talking point—and the current favorite—is, “They are not honoring the Constitution anyway; what makes you think amendments would have any effect?” But as I have documented extensively, this objection also flies in the face of 230 years of history and legal precedent. All constitutional amendments made a significant difference when adopted and nearly all continue to make a significant difference today. Nevertheless, I suppose such a statement is somewhat understandable if the speaker is entirely unfamiliar with constitutional history.

But what is the basis for the assertion that it is now “too late?” There is none. On the contrary, if you are a conservative convention advocate, the time seems just right:

* Thirty one states now have Republican legislatures, and several more will be in play in the 2022 elections. Lobbyists for the convention tell me that moderate Republicans favor a convention at least as much as conservatives.

* Our current Supreme Court, while not exactly conservative, is the most judicially-traditional in many years and therefore most likely to adjudicate Article V cases honestly.

* Several recent decisions in other courts—including the California Supreme Court— have recited the facts regarding Article V with perfect accuracy, thereby further cementing the basic principles into judicial understanding.

* The American people are profoundly unhappy with the federal government: A recent poll showed Congress with a 17 percent approval rating.

These are simple facts available to any American. So what is really going on? You get a hint when you ask the naysayers for their alternatives. They include:

* “Repeal the 17th amendment!” (As if there were any chance that the American people are going to disenfranchise themselves from voting on U.S. Senators.)

* Nullify! (As if state legislators are going to meet 24/7 for years in a row nullifying the huge mass of objectionable federal laws.)

* Secede! (As if the current batch of federal officials wouldn’t gleefully respond militarily.)

Absurd answers like “repeal the 17th,” “nullify,” and “secede” tell you that these objections are not real. They are excuses made by lazy and cowardly people avoiding their civic responsibility. There have always been such people in American society—in any society.

They stand by, kvetch, and whine—while others make history.

– Rob Natelson

Rob Natelson