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Opening Arguments

Conventional wisdom

When Joe Weiler was editor here, he and I used to have a recurring debate about whether a constitutional convention should be called. The strongest arugment for one is that the federal government is clearly out of control and needs to be reined in. The strongest one against is the possibility of a runaway convention that could stick us with all sorts of mischief. Now that Mark Levin's bestselling "The Liberty Amendments" is arousing new interest in the subject, I'd like to see a national conversation on the idea, starting with this piece explaining that a little historical research should dampen the fears of a runaway convention:

Those speculations simply overlook the last two decades of research into the background and subsequent history of the Constitution's amendment process. They also ignore how that process actually has worked, and how the courts elucidate it.

The Founders provided, in Article V of the Constitution, for a "convention for proposing amendments." They did this to enable the people, acting through their state legislatures, to rein in an abusive or runaway federal government. In other words, the Founders created the convention for precisely the kind of situation we face now.

[. . .]

In the unlikely event that the convention strays from its prescribed agenda (and the commissioners escape recall), any "proposal" they issue is ultra vires ("beyond powers") and void. Congress may not choose a "mode of ratification," and the necessary three-quarters of the states would not ratify it in any event.

Contrary to Mrs. Schlafly's claim that "Article V doesn't give any power to the courts to correct what does or does not happen," the courts can and do adjudicate Article V cases. There has been a long line of those cases from 1798 into the 21st century.

"But," you might ask, "Will the prescribed convention procedures actually work?"

They already have. In 1861, in an effort to prevent the Civil War, a convention of the states was called to propose a constitutional amendment to Congress. Congress subsequently deadlocked over the amendment, but the convention did everything right: It followed all the protocols listed above, and it produced a compromise amendment. Although the convention met in a time of enormous stress, this "dry run" came off well, with none of Mrs. Schlafy's speculative "horribles."

What the runaway warners overlook, or at least downplay, is that part about three-quarters of state legislatures needing to ratify anything coming out of a convention.Even if convention delegates go wildly astray, nothing's going to happen with their output unless it's OK with an overwhelming majority of Americans.