As I listened to the pitchfork brigade testify this week in a House committee on limiting federal power, I found myself in agreement with the Texas Eagle Forum and members of the John Birch Society on one issue – forcing Congress to call a Constitutional Convention is a dangerous idea that could destroy one of the best national charters ever written.
I had originally gone to the House Select Committee on State and Federal Power and Responsibility, to hear the testimony on Representative Dan Flynn’s HB 98 to set up a committee to nullify federal law whenever the state of Texas thought it was a constitutional usurpation of state power. Surprisingly, no one was there to testify against a theory of constitutional law that, as far as I know, was last seriously used in the 1950s by Arkansas school districts trying to avoid federally court-ordered integration. Nullification is going to have to wait for another day.
The real controversy was over HJR 77, HJR 78 and HJR 79 – resolutions designed to force Congress to call a constitutional convention for the “limited” purpose of passing an amendment to the U.S. Constitution either to impose “fiscal restraint” on the federal government or a “balanced budget.” Supporters of these measures called the process a Convention of States rather than a Constitutional Convention.
This is the so-called Article V constitutional convention that Congress is required to call if it receives resolutions from two-thirds of the states. There never has been one, but a movement for one is credited with prompting Congress in 1912 to pass the Seventeenth Amendment for the direct election of U.S. Senators. At present, 34 states would have to petition Congress to trigger the call for a convention. For a history of Article V calls, please click here to read a report by the Congressional Research Service of the Library of Congress.
State Representative Paul Workman — whose Austin district has 20 percent of its households receiving Social Security income, the highest percentage of any of the Travis County House districts – told the committee that runaway federal spending makes passage of his resolution calling for a convention to impose fiscal restaints on Congress is a necessity.
“Congressional leaders and presidents of both major political parties have presided over the explosion of federal debt to an astounding $18 trillion,” Workman said. “Congress has shown no serious desire to rein in its spending.”
One witness after another described how the convention would be limited to issues of fiscal constraint and declared that it would be the states that would control the convention process. But witnesses with the Texas Eagle Forum and the John Birch Society opposed the measure, because they noted there is nothing in the Constitution that describes how such a convention would be held and Congress most likely would set the rules.
“To say you’re just nudging Congress is very dangerous,” said Texas Eagle Forum past-President Pat Carlson. “Don’t forget, there are liberal groups out there just waiting to jump in and pass their own stuff.”
Carlson and other opponents of the constitutional convention are completely correct. The supporters are operating on an almost religious faith that the convention would go exactly as they want and be as limited as they want. For instance, how are delegates to the convention chosen? Are they one to a state, as some witnesses said, which would give the Republicans an advantage, or are they chosen by the same manner as the Electoral College, which would give Democrats an advantage. And any amendment that came out of the convention would have to be ratified by two-thirds of the states, and it should be remembered that President Obama won 26 and Republican Mitt Romney carried just 24 in 2012.
Also, there is the issue of how do you define “fiscal restraint,” since just about every aspect of the federal government involves the spending of money. Does fiscal restraint mean shutting down the EPA or the Affordable Care Act, Obamacare? The federal government provides money to the National Guard, so does that mean fiscal restraint could included changing the Second Amendment to say the right to keep and bear arms is restricted to the militia?
While many of the witnesses in almost five hours of testimony talked about federal spending, they also said the convention should term limit members of Congress or include permanent shifts of power from the federal government to the states. Some wanted to repeal that Seventeenth Amendment, somehow believing state Legisaltures would do a better job of choosing senators than elections of the people in each state. The U.S. Supreme Court was a particular target. Witness Allen Adkins of Lubbock was typical: “We do have a runaway federal government, and that’s been said over and over again…We need to term limit them and rotate them through there as quickly as we can. I’d like to see something like that happen.” But he didn’t stop with Congress:
“The biggest enemy of the people of the United States is the Supreme Court. The people need to vote. That’s what the Revolution was fought about. How many people in here voted on the abortion laws that we have, the sodomy laws that we have. Who voted to strike down our sodomy laws. What about prayer in school? Who voted to take prayer out of school? The marriage laws, they’re coming up in the Supreme Court in June. Those are going to be struck down. We’re going to have homosexual marriage laws in our country. This social change being ramrodded on us by the Supreme Court, has got to stop. They need their wings clipped…These guys need to be term limited. Federal judges aren’t special.”
The Eagle Forum and the John Birch Society are correct. There is no way to guarantee a constitutional convention will be limited to any one topic of the right or the left. It would endanger one of the greatest national charters ever written. And mostly likely it would end up as a total bust, just like the Texas state constitutional convention of 1974. After seven months and $3 million spent to run the Texas convention ($13 million in today’s dollars), the convention failed to produce a final work. And when the Legislature presented the convention’s best work to voters in 1975 as eight amendments, they voted all of them down.
The founding fathers wrote a conservative Constitution. They intended changes to the document to be slow and difficult, because that is the best way for the Constitution to represent a national consensus.