Heritage Foundation Paper Supports a ‘Convention of the States’

A copy of the U.S. Constitution in Washington on Dec. 17, 2019. Andrew Harnik/Pool/Getty Images

Commentary

The movement for a national convention of states recently got a boost when a formerly skeptical national think tank issued a paper in support.

The paper is titled “Reconsidering the Wisdom of an Article V Convention of the States.” It was written by John G. Malcolm, a Harvard-trained lawyer who’s vice president of The Heritage Foundation’s Institute for Constitutional Government.

Article V is the part of the Constitution that outlines the amendment procedure. Article V says that any amendment must be ratified by three-fourths of the states. But it also says that before ratification, an amendment must be proposed—i.e., formally recommended. Only Congress or a “Convention for proposing Amendments” may propose.

Both the historical record and the Supreme Court tell us that a “Convention for proposing Amendments” is a convention of the states. A convention of the states (or “convention of states”) is a meeting of representatives from the state legislatures. They meet to negotiate and suggest solutions to common problems.

According to the record of the 1787 constitutional convention, Congress received the power to recommend amendments mostly because it’s well placed to identify defects in the federal system and suggest solutions.

A convention of the states was enlisted by the Constitution’s framers primarily as a way to bypass Congress and check the federal government. The founders’ idea was that if the feds became dysfunctional or abusive, the people—acting through their state legislatures—could force a convention to recommend changes in the rules governing them.

As Mr. Malcolm points out:

“The organizers of the Convention of the States movement contend that the Framers of our Constitution would be bewildered and disheartened by the current state of affairs and by the fact that, like a muscle that has atrophied from disuse, the people, acting through their state legislatures, have failed to avail themselves of the precise mechanism in the Constitution to address this situation. They are undoubtedly correct.”

The “current state of affairs” is, of course, that the federal government is a mess. For example, since 1930, it has rarely balanced its budget. Over the past two decades, it has never balanced its budget.

The mess has sparked recurrent convention talk. Reform ideas include amendments to require a balanced budget, except in time of war or other truly serious emergencies; extend term limits (imposed on the president in 1951) to Congress and perhaps to judges and other federal officers; reform the campaign finance system; and shore up the Constitution’s eroded limits on federal authority.

Some of these ideas are hugely popular with the American people.

Opposition comes mostly from the political left. This is understandable. During the 20th century, liberals and “progressives” convinced the Supreme Court to amend the Constitution de facto—thereby making it more to their liking. (I described the de facto amendment process in my Epoch Times series “How the Supreme Court Rewrote the Constitution.”)

By and large, these changes haven’t worked out well. For example, by removing limits on federal spending, they helped create the federal debt problem. Still, whenever public talk about holding an amendments convention heats up, so does the opposition. These days, much of the opposition comes from groups funded by financier George Soros.

Opponents rely on a handful of talking points. Those talking points have been promoted heavily by the liberal media and have worked well for many years. The two most important talking points are (1) the convention could become a “runaway”—that is, propose amendments outside the scope prescribed by the states, and (2) Congress would control the convention.

Observe that these two talking points—like some of the others—contradict each other.

The convention has also run into fire from a minority on the political right. The less responsible right-wing groups use the issue in fundraising campaigns designed to scare people into forking over their money. The scare campaigns are marred by outrageous claims about the Constitution, history, and law.

Among responsible conservative opinion-makers, few actually oppose a convention. But some do remain skeptical. Some of the skeptics have worked for The Heritage Foundation. Because Heritage is arguably America’s most influential conservative think tank, its attitudes count. That’s why the new Heritage paper is so important.

Mr. Malcolm recently attended a simulated convention in Williamsburg, Virginia, sponsored by the leading pro-convention group, Convention of States Action. He correctly acknowledged that the simulation differed in important ways from a real convention. Nevertheless, he was reassured by the experience.

Mr. Malcolm also has been reassured by some political and legal developments discussed in his paper:

“In light of these developments, the risks of a runaway convention now appear to be minimal. At this point, the biggest downside of holding a convention of the states, in my estimation, is that no amendments proposed by the convention are likely to garner the necessary approvals from 38 states to achieve ratification.”

He’s correct to say that “the biggest downside” of triggering the convention process isn’t that it might do too much—but that it might do too little. The convention might deadlock. Or it might produce amendments but see them die for lack of sufficient state or public support.

Yet the mere fact that a convention met would be a good thing. It would shoot a political cannonball across the bow of the federal ship of state. The message would be clear: “Get your leaky craft in order, or the states will board her and fix the leaks themselves!”

As for recent developments decreasing the “risk” of a runaway convention: That risk never existed. The notion of a runaway amendments convention was first invented during the 20th century as a way to alarm people. The “runaway” myth has no basis in fact. (The widespread claim that the 1787 convention “ran away” has been discredited.)

The convention of states procedure is a well-worn, well-understood one. It actually pre-dates the Constitution itself: About 20 conventions of colonies met before 1776. Another 11 interstate conventions gathered between 1776 and 1787. And still another 11 have gathered since then. The most recent was in 2017, in Phoenix, Arizona.

The procedure is that state legislatures (or officials acting pursuant to legislative authorization) empower “commissioners” to meet for negotiations, much as nations empower diplomats to meet with other diplomats. And like diplomats, convention commissioners are restricted by topics and instructions specified in advance.

Anything the convention recommends must be approved by three-fourths of the states. This ensures that any proposed amendments meet the overwhelming approval of the American people.

It’s good to see increasing agreement that we should call a convention to address the federal government’s many problems. Let’s hope it’s not too late.

Robert G. Natelson, a retired constitutional law professor, moderates the Article V Information Center at the Independence Institute in Denver. He authored “The Law of Article V” (2nd ed., 2020), a legal treatise on the constitutional amendment process. He formerly served as a consultant for several groups active in the campaign for a convention of states.

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