Restoring Federalism: Debunking the Fear of an Article V Convention

Last weekend I attended an Article V convention conference at Harvard Law to discuss the viability of states calling an Article V convention.  The event was co-sponsored by the Tea Party Patriots and Harvard Law professor Lawrence Lessig.  I was pleasantly surprised to learn some on the left have come to the realization that the answer to a runaway national government is a return to federalism as the framers intended.  The mechanism to return to federalism is an Article V convention. 

I whole-heartedly support, and do not fear, an Article V convention.  Since my political philosophy is squarely on the right side of the political spectrum, I know many on the right fear an Article V convention.  Those on the right often cite a runaway, wide-open convention that would supplant the Constitution or the country already has a Constitution that works.  Likewise, there are many skeptics on the left that fear an Article V convention. The left expressed fears the right would impose a national religion and corporate money in politics is corrupting government.  Responses from both sides are based on fear.  Fear is nothing more than an emotional response to a situation.  When pressed, those opposing an Article V convention are hard-pressed to engage in reasoned, civil discourse. 

It is contradictory to state we have a Constitution that works yet oppose the concept of states proposing amendments.  If we have a Constitution that works then, in theory, it would be a perfect document not requiring amendment.  The argument is nonsensical.  Even the framers recognized the need to amend the Constitution and, indeed, the Constitution has been amended twenty-seven times.  Clearly, the reason the Constitution does work is because the framers provided a method to amend it.  It’s only a question of who proposes amendments. 

Some believe the next election cycle is the panacea to our ills.  Some say, if we could get control of the House or the Senate, or if we could get control of the White House everything will magically reverse course and we can all live happily ever after.  Perhaps that is true if you live in a fairy tale, but we live in the real world where the situation is much more nightmare-ish.  Last year Congress’s approval rating was eleven percent.  After the results of the historic mid-term elections Congress’s approval rating soared to a whopping twelve percent.  Folks, we’ve tried that for decades and government continues to grow and continues to abridge and deny our freedoms, rights, and liberty.  If you believe the next election cycle is the panacea, then there is no need to continue reading.  

Let me explain how I overcame my fear of an Article V convention.  I believe Washington D.C.is broke and cannot fix itself.  I base my belief upon the fact that regardless of which political party controls the White House or the Congress,Washington simply will not constrain itself.  In the thirty years of my adult life government has grown.  The debt has increased from $1 trillion in 1982 to nearly $15 trillion today.  The number of federal employees has increased.  The budget has increased.  Regulations have increased.  Individual rights and liberty have decreased.  This has happened under Republican or Democrat control of the White House and/or Congress.  My fear is not the possibility of a runaway convention; rather it is the reality that we have a runaway national government.  

Otherwise, if you believe as I, that Washington D.C. cannot fix itself it is logical and rational to consider other options.  Since the Bill of Rights was ratified there has never been a single amendment ratified that constrained the power of the national government.  Congress has proposed every single amendment that has ever been ratified.  Congress has a vested interest in keeping the status quo within certain left/right limits.  The ebb and flow of power between Republicans and Democrats requires a dose of political Dramamine.  When the right is in power the left is ticked off.  Likewise, when the left is in power the right is ticked off. 

Ultimately, many citizens are unhappy with the ruling class.  Many are apathetic or frustrated and don’t bother to vote or participate in anything closely resembling politics.  The Constitution established federalism; a system of governance where two sovereignties have political authority over the people.  The states delegated a few powers to the federal government and retained all other powers not otherwise delegated.  The framers created a system of checks and balances.  The states were a check on the federal government just as the distribution of powers amongst the three branches within the federal government was a system of checks and balances.

Likewise, the Constitution distributed equally the power to propose amendments.  This approach is logical and consistent with two sovereigns under federalism.  Give each sovereign a method of proposing amendments.  Congress can propose amendments with a 2/3rds vote in the House and the Senate.  Likewise, states can propose amendments when 2/3rds of the states send applications to Congress to call an Article V convention.  In either case, proposed amendments must be ratified by 3/4ths of the states. 

Like any good lawyer trying a case, the closing argument is a summarization of the trial and an attempt to convince a jury to decide for or against something.  Federalist 85 was the last federalist paper written and was the closing argument for constitutional ratification.  In summary, Hamilton says the Constitution is imperfect and those opposing ratifications will find ways to point out imperfections.  Ultimately, the Constitution provided the states with a trump card. Hamilton said, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.” 

During the 1787 constitutional convention the framers considered including the option for states to call a wide-open constitutional convention.  This idea was proposed, and defeated, several times.  The framers clearly rejected the idea of a wide-open, general convention.  Instead, the framers included a provision for a limited convention to address specific issues.  Moreover, the framers debated methods to propose amendments and the historical record from the constitutional convention proceedings, state ratifying conventions, and other sources clearly demonstrate the intent is to allow amendments only.

Article V clearly places both methods of proposing amendments on equal footing, and clearly states Congress shall call a convention for proposing amendments.  Congress performs a ministerial role once states apply for a convention.  Congress is obliged to call the Article V convention.

In my mind, the Article V conference at Harvard confirmed both the left and the right are dissatisfied with Washington, D.C.  We can find agreement for the need for states to call an Article V convention.  I spoke with several people and groups on the left and the good news is they are beginning to realize that federalism is the solution to a runaway national government.  That’s right, federalism as established in the Constitution.  Ultimately, the choice comes down to a handful of options:

 1)      A national government that continues to consolidate power and forces both the right and the left to live unhappily with the outcomes.  This is the status quo.

2)      Put your faith in the next election cycle and hope the next group of elected officials reduces the size and scope of government.  This has been tried repeatedly and has failed miserably.  It reinforces the status quo.

3)      Use the tools provided in the Constitution to reign in the power of the national government.  States call an Article V convention and propose amendments.

4)      An amicable divorce.  The union is dissolved peacefully into regions.

5)      A revolution.  Think secession.  Possible civil war. 

Federalism affords those with varying interests and political views to live as they desire without undue and overbearing influence from Washington.  Those farthest to the left may wish to live in a state that embraces socialism and provides health care, housing, food, education, etc. to all the citizens of the state.  Likewise, some may wish to live in a state that protects individual rights and liberty, property rights, and has a minimum level of state regulations.  In fact, we could have fifty different solutions (or fifty-seven according to the President).  People would vote with their feet and live in a state that best represents their interests.

My support for an Article V convention is a risk/reward scenario.  What are the risks and rewards of this option relative to the risks/rewards of other options?  While you may disagree with my conclusion, it is my belief that pursuing a constitutionally proscribed and peaceful method to amend the constitution provides the greatest chance to return the country to federalism with the least amount of risk.  You must weigh the risks and rewards of an Article V convention against the clear and present danger of doing nothing or putting your faith in the next election cycle.

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3 Comments

Filed under Constitution

3 responses to “Restoring Federalism: Debunking the Fear of an Article V Convention

  1. Bernie LaForest

    A return of federalism? I can only hope. Yet, like John Taylor of Caroline, I pledge to remain an anti-federalist in the true sense and ever watchful of government encroachment.

    Well written article, thanks.

  2. James Patrick Lehman DDS

    And the skies opened up, the angels began to sing. The revelation embodied here is nothing short of Godsent. Thank you for writing it.
    James Patrick Lehman DDS

  3. Richard Benjamin

    An Article V convention would certainly require an open and highly visible debate of what is wrong with the path we are on. A 3/4 majority requirement prevents one faction (left or right) from moving us into a more dangerous position (if one can be imagined). Instead, it assures healthy debate of the proper place the National and State Governments should be bound to, with respect to individual rights and freedoms.

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