Proposed legislation calling for a “Convention of the States” to propose amendments to the U.S. Constitution has been the subject of a lot of discussion lately, and rightly so. Having never actually been convened before in the 226-year history of our Republic and with no legal mechanisms in place to govern what it would look like and how it would operate, there’s a lot of questions about the wisdom of doing this. What I haven’t heard adequately explained is why we would ever want to.
The intent expressed by proponents is laudable: to clarify language in the Constitution that has been misinterpreted over time by the courts and ensure that the original interpretations and intents of such things as the Interstate Commerce Clause and General Welfare Clause are restored and don’t continue to be used as a catch-all excuse for the federal government to do whatever it wants. Great. I’m all for that. So what does any of that have to do with a Convention of the States?
If that is what we want to do, there’s a perfectly functional, well-understood mechanism to make that happen. Draft amendments to the Constitution, submit them to the states for ratification, and let’s have the public debate about why we need to do that. You’d of course need 38 states to ratify the amendments but then you’re done. The somewhat tricky part is to get two-thirds of Congress to agree to propose them, and concerns about whether that’s feasible is what’s driving the call for a Convention of the States which would replace the 66% requirement of Congress with a 66% requirement of states. In the minds of CoS proponents, getting 34 states to propose amendments is going to be easier than getting 67 members of the U.S. Senate to agree to anything.
So the choice here is whether we want to embark on a potentially hazardous journey with a Convention of States, or engage in a normal political exercise to convince a two-thirds majority in the Senate to vote for one or more amendments. Right now there are 54 Republicans in the United States Senate, about a dozen of which aren’t any more useful than a warm bucket of spit when it comes to liberty issues, but could conceivably be convinced of the wisdom of adopting amendments like these. If you’re going to make an argument sufficient to convince 13 Democrat Senators to break ranks, most likely those useless Republicans won’t break in the opposite direction.
The immediate concern then becomes how such an argument is made. Realistically, you get a liberty-oriented Senator to propose the bill, beat up Mitch McConnell enough that he’d actually bring it to a floor vote, and when it fails a cloture vote you now have a (likely somewhat bipartisan) list of targets. You make their re-election campaigns a referendum on the vote those Senators cast, and you vote enough of them out that you convince the rest they better not oppose it the next time it comes up. If you cannot vote enough of these guys out, don’t expect there’s much chance to get 38 states to ratify those amendments, as you obviously haven’t worked hard enough yet.
Yes, this is not a “quick fix,” but nothing in politics that is a quick fix ever works. It takes time - by the intentional design of the framers - to get anything of importance done. It takes work, because it is supposed to take work. It requires that all sorts of people dedicate themselves to setting brushfires in the minds of others to convince them of the necessity of these amendments, exactly as the framers intended. This is what they wanted, for all of you to get off your butt and take control of the future of this country, and they warned us about what would happen if that didn’t happen.
The only time we have managed to shift the political direction of the country in a positive direction is when we had candidates for Congress campaigning on an important issue related to conservative governance. It happened in 1981 (+12 Senate Seats), in 1995 and again in 2015 (both +9 Senate seats). In those elections we were talking about serious philosophical governance issues, whether it be conservatism in general (1981), the “Contract With America”, or limiting the role of government intrusion into our lives (2015). In every other election when serious philosophical issues were not on the table, Republicans either tread water or more often, lost seats. Just having a robust debate about federalism, the role of government and other issues central to the amendments I’m sure we’d be considering would, if history is a guide, result in a substantial swing in the makeup of Congress and make it possible for conservative challengers to not only replace liberal Democrats, but liberal and mushy-middle Republicans as well. Not only do you get an opportunity to pass important Constitutional amendments, but you get better governance as well.
Really when you get down to it, a Constitution in and of itself is not an impenetrable bulwark that protects us from tyranny. It cannot be. What is an impenetrable bulkwark protecting liberty is a Congress composed of responsible conservatives that implement policy directly from the philosophy of conservatism. If we “fix” Congress with better elected officials, we don’t need to amend anything to get the federal government to follow the Constitution as it was designed. You can get that as a bonus, but what you get fundamentally is so much more useful.
Here’s where the real, hard work comes in. If you seek better government, you need better elected officials. If you want to have better elected officials, you need to have better, more informed, better educated voters. That’s the source for all that is good or ill in government. Amendments can’t hurt, but Congress and the Courts have always been able to evade those restrictions when they’ve wanted to.
A Convention of States is not going to get us better voters. At all. That’s where we need to spend our energy, not on a Convention of States.
The opinions expressed here are solely the views of the author, and not representative of the position of any organization, political party, doughnut shop, knitting guild, or waste recycling facility, but may be correctly attributed to the Vast Right-Wing Conspiracy. If anything in the above article has offended you, please click here to receive an immediate apology.
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