Millions of Americans are understandably frustrated at the inexorable growth of governmental power, especially at the federal level. This frustration has caused many to look for solutions, many of which will either do nothing or have the potential to make the problem worse—much worse.
The proposal for a constitutional convention to supposedly rein in the out-of-control federal behemoth is the greatest example of the latter. In fact, calling a national convention to change our Constitution in our present toxic atmosphere could very well provide the final blow to our constitutional republic. As the late Justice Antonin Scalia once told the Federalist Society, in reference to the push for such a convention, this is a bad century in which to write a Constitution.
While this might seem to be alarmist, the threat is real. Harper’s magazine sponsored a forum at New York University in 2019 that illustrates the danger. The left-wing “scholars” at the forum argued that it’s our Constitution that’s the chief obstacle to the full implementation of the progressive agenda. One participant, Lawrence Lessig, argued that the best way to achieve progressive goals is a constitutional convention, provided for in Article V of the Constitution.
The Constitution has been amended 27 times (the first 10 times were all at once, producing our treasured Bill of Rights), but all of these amendments were proposed by the first method of proposal—by a two-thirds vote of each house of Congress. The second method of proposal, via a constitutional convention, has never been used.
But Lessig sees this so-far-unused second method as the best vehicle to remove the present constitutional obstacles to achieving the goal of the forum—ditching the present Constitution of the United States. He believes it’s time to “rewrite our Constitution.” Lessig has supported an organization dedicated to the calling of a national constitutional convention, known as Wolf-PAC. On page 293 of his 2011 book “Republic, Lost,” he wrote “a constitutional convention is the only final plausible strategy for forcing fundamental reform onto our Congress.”
Although there are many conservatives who are likewise desirous of a convention in order to pass this or that “conservative” reform, they should understand that once the convention is seated, conservatives might very well not have control of its agenda. Any such convention will be chosen by the same electorate that has picked our present Congress. The argument by the organization Convention of States that it would be the state legislatures that chose the delegates has no support in the text of Article V of the Constitution—none.
Many goals of the left would also be on the agenda at any such convention. For example, many have suggested the abolition of the Electoral College as one of the objectives that could be achieved at a national convention. Other progressives would no doubt target the repeal of the Second Amendment.
Some conservatives have been sold on the idea that adding new language to the Constitution to restrain the federal government is the solution to our present problems, but considering that congresses, presidents, federal judges, and federal bureaucrats routinely disregard our present constitutional restrictions on their powers, why should we believe they would respect any addition to the Constitution attempting to rein them in?
The First Amendment, adopted in 1791, specifically said that Congress could pass no law abridging freedom of speech or of the press. Yet, just seven years later Congress did exactly that with the Sedition Act. President John Adams signed the bill into law, and federal judges handed down fines and jail time to violators of the law.
James Madison, the man dubbed “the Father of the Constitution,” specifically rejected the idea of the calling of a constitutional convention to restrain a federal government that disregarded the restrictions placed upon it in the Constitution, when he wrote Federalist 49 of the “Federalist Papers.” In fact, Madison said that “occasional appeal to the people [a convention] would be neither a proper nor an effectual provision” for placing restraints on the federal government.
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