Critics Warn of Gov. Gavin Newsom’s Potential Runaway Constitutional Convention

California Governor Gavin Newsom speaks during the Milken Institute Global Conference in Beverly Hills, California on May 2, 2023. Patrick T. Fallon/AFP via Getty Images

Commentary

California Gov. Gavin Newsom has taken a lot of flack for his recently proposed 28th Amendment to the Constitution.

“Our ability to make a more perfect union is literally written into the Constitution,” he explained on June 8. “So today, I’m proposing the 28th Amendment to the United States Constitution to do just that. The 28th Amendment will enshrine in the Constitution common sense gun safety measures that Democrats, Republicans, Independents, and gun owners overwhelmingly support—while leaving the 2nd Amendment unchanged and respecting America’s gun-owning tradition.”

Newsweek summarized the criticism by pointing out the NRA branded it “unhinged.” Republican House Speaker Kevin McCarthy, a fellow Californian, wrote on Twitter, “Hey Governor Newsom, the 2nd Amendment already exists—we don’t need a 28th. But what we do need is for Presidential aspirants to stop pushing their extreme positions nationally.”

But the real problem comes from this statement in Newsom’s announcement; note the italics I added:

“The Governor will work with grassroots supporters, elected and civic leaders, and broad and diverse coalitions across the nation to fight for the passage of similar resolutions in other state legislatures to ensure the convening of a constitutional convention limited to this subject. 33 other states, in addition to California, would need to take action to convene such a convention.”

Apparently he doesn’t know a Constitutional Convention probably cannot be limited—the same as the original one in 1787. According to the short history on the website of the U.S. House of Representatives:

“Six years after the ratification of the Articles of Confederation, which established the first national government, a majority of Delegates to Congress agreed that the Articles needed significant revisions. On February 21, 1787, the Congress resolved that ‘a convention of delegates ... appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation.’”

But instead of “revising,” the delegates produced an entirely new document, the Constitution of the United States of America, later ratified by the states.

A 28th Amendment Convention likely could do the same—passing a 29th Amendment, a 30th Amendment, all the way to an Nth Amendment. Or it could imitate the delegates of 1787 and write an entirely new Constitution.

Of course, it still would need 34 states to approve whatever was passed. Most likely, only a few states would approve even Newsom’s 28th Amendment. Republican states all would be against it. So would some Democratic states. Vermont has long been the most pro-gun state in the country. Long before last year’s Bruen decision affirming the right to carry a concealed gun, Vermont did so, without even the requirement of taking a course or getting a permit. That’s now called Constitutional Carry and has been adopted in recent years by a total of 26 states. Florida’s law, the latest, goes into effect in July.

Pro-Life Convention

I remember when a Constitutional Convention was talked about on a large scale after the Roe v. Wade decision by the U.S. Supreme Court in 1973 overturned all state abortion laws—even the liberal ones—and imposed abortion on demand everywhere. That was overturned with last year’s Dobbs decision.

This took 49 years, because—although Republican presidents kept promising to appoint pro-life justices to the U.S. Supreme Court—too often we got such pro-aborts as Sandra Day O’Connor and Anthony Kennedy.

As Robert N. Karrer detailed in his 2011 article, “The Pro-Life Movement in Its First Years Under Roe,” “Pro-lifers promoted a Constitutional Convention to achieve a Human Life Amendment. The plan failed.”

In 1979, the Congressional Quarterly produced research which looked at two proposed calls for a Constitutional Convention—one for a pro-life amendment, the second mandating a balanced federal budget. As of that year, 14 states had called for a pro-life convention, well short of the 34 required.

Runaway Convention Concerns

At the time, President Jimmy Carter warned of a convention for a balanced-budget amendment:

“I think the convening of a Constitutional Convention to pass such an amendment would be very ill-advised and contrary to the best interest of our country. It would be a radical departure from the historic procedures that we have always used to amend our Constitution and might result in unlimited amendments which would change the basic thrust, the philosophy and the structure of our government.”

And the research article noted:

“Carter’s statement echoes the concerns of a number of constitutional scholars, members of Congress and others about what would happen if a constitutional convention were called. Because there are no established procedures for calling and running a convention, some fear that a convention, once called, would move beyond the specific subject of the proposed amendment and make broad revisions in the nation’s constitution. ‘There is no assurance that [a constitutional convention] would not be a runaway,’ Rep. Don Edwards, D-Calif., chairman of the House Judiciary Committee’s Civil and Constitutional Rights Subcommittee, said recently. ‘We’ve had only one constitutional convention and it tore up the Articles of Confederation.’”

However, others said a Constitutional Convention could be limited:

“That fear is not shared by a special constitutional convention study committee set up six years ago by the American Bar Association (ABA). The committee’s report, which was adopted by the ABA in August 1973, said the convention method of proposing amendments could be ‘an orderly mechanism of effecting constitutional change when circumstances require its use.’ Others have pointed out that the work of constitutional conventions—including a ‘runaway’ session—still would require ratification by three-fourths of the states. ...

“On the question of whether Congress has the power to limit a convention’s scope, Attorney General Griffin B. Bell said recently: ‘I absolutely do think limits can be set. I think Congress has a duty to do so.’ The ABA study and a 1973 Senate Judiciary Committee report support that view.”

Conclusion: Newsom Grandstanding

Given a Constitutional Convention is highly unlikely, this question of limiting a convention will remain unresolved. But Newsom’s lack of care on the point shows this isn’t a realistic proposal. He’s just doing it to gain points for a potential presidential run in 2028. Or, possibly, in 2024, as President Biden’s every stumble generates more conjecture that he might cancel his re-election bid.

The national news on his 28th Amendment shows Newsom is garnering the national attention he’s been seeking. Get ready for many more ideas that, even if they’re unrealistic, keep his name out there among the Democratic primary voters he’s courting.

John Seiler’s email: [email protected]

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.