Is Convention of States a good idea?
Updated: Jan 6, 2023
In 2022, there were multiple Resolutions in front of the Ohio Legislature (HJR1, SJR4, SJR8) that would enable the State of Ohio to request that Congress call a "Convention of States", pursuant to Article V of the U.S. Constitution. The first two request three types of Constitutional Amendment and are consistent with many other States that are requesting these same three Amendments. The third and newest Resolution is limited to one topic: Term Limits.
There are currently 19 States who have passed a similar Resolution calling for these Amendments. If 2/3 of the States (34) request those Amendments, Congress is required by the Constitution to call for and establish such a Convention.
Many of Ohio’s citizens are fed up with our out-of-control Federal Government and believe that many of the laws and regulations they have given us are outside the scope of the enumerated powers given to them by the States. I am one of those citizens. I’m as upset as anyone about this overreach, corruption and out of control spending. I support the Amendments described in this Resolution. The question is how best to achieve the goal.
Fortunately, the Founding Fathers have given us several methods to amend the Constitution when that is necessary, including the standard Amendment process which has been successfully used at least 27 times in our nation’s history. I fear that this Resolution is an attempt to garner attention by using a new approach and playing on the current partisan fervor in our country. We need to take a step back and weigh the options. It is not necessary, and it is dangerous.
In September 1786, delegates from five states met at the Annapolis Convention and invited all states to a larger convention to be held in Philadelphia in 1787. The Confederation Congress endorsed this convention on February 21, 1787 "for the sole and express purpose of revising the Articles of Confederation.” On May 29, 1787 they voted to make their deliberations secret and the States lost control of the Convention.
Experience Urges Caution
The only experience we have with anything like this Convention, showed us that, once the delegates begin their process, there will be virtually no check on what they end up doing. In 1787 they used the Declaration of Independence as a powerful authorization for ignoring the directions of the States they represented and introduced the “Virginia Plan” as an agenda- the rest is history. Why should we be convinced that, especially with the current highly partisan atmosphere in this country, a new Convention would be properly restrained and would not go further than originally intended?
Some Pushing for an All New Constitution
Multiple new Constitutions have already been created and floated by different groups, including at least one by a member of the COS Board (Robert George). Why would a member of the COS Legal Advisory Board create a new Constitution if the sole intent of COS is limited to Amendments? Do you think someone like George Soros, or other billionaires, might weigh in on this with millions of dollars to try to select the delegates, and then sway both the public and the delegates, once selected?
Founding Fathers Say Bad Idea
And despite what well-known “pundits” may say, Madison, Hamilton, Jay and multiple other Supreme Court Justices, including Antonin Scalia have expressly opposed this method. They learned from the first one. In fact, in a 1787 letter to his friend George Lee Turberville, Madison enumerated four strong arguments against such a Convention. And according to Chief Justice Warren Burger in 1988, “…there is no effective way to limit or muzzle the actions of a Constitutional Convention… After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda…” More recently, Antonin Scalia had a similar warning. How can we dismiss warnings from these Founders and Supreme Court Justices? Who better to guide us? How can the proponents of this method say there is no risk?
States Will Not Control the Convention
Even if we could hold the Ohio delegation accountable for sticking to the specific topics we want discussed, what happens of other states stray from the initial intent, just like 1787) and introduced new Amendments or a new Constitution? Our only recourse would be to recall our delegates, if we can, and not participate at all in the proceedings, which woul be the greatest risk of all.
In fact, the Constitution says that Congress will call the Convention and determine the method of ratification, not the States. And assuming the need for ratification by 38 States again ignores the fact that the ratification requirement was reduced from 13 states to 9 during the first Convention. A Congressional Research Service Report in 2014 said once Congress calls the Convention, it will also provide the method for delegate selection and the voting process. And Congress is also empowered in Article I Section 8 to make laws enforcing these actions. Do we think Congress will not try to wrestle control of this process? This Resolution may, in fact, give more power to Congress than was ever intended. Even our own Ohio Legislative Service Commission, who is the technical legal service who counsel our Legislators on new legislation has done an Analysis of this Resolution which includes a clear warning, which apparently was recently updated to be even cautious:
"The U.S. Constitution does not specify how a convention to propose amendments to the U.S. Constitution must be conducted or how its delegates are to b more e chosen. Further, the Constitution does not indicate whether the states that apply for a convention may limit the scope of amendments the convention is to propose. A convention of the states has never been held under Article V. If Congress called a convention as a result of the resolution and others like it, and the convention proposed amendments outside the scope of the topics listed in the resolution, it is not clear whether a reviewing court would find the proposed amendments valid. "
The problems we are having with our current federal government are the result of ignoring the Constitution that we already have- they have exceeded the limits that we, the states, put on them through enumerated powers. What Ohio needs to do is hold the federal government accountable for its overreach. If we can't, then adding new Amendments will not help us.
And if we must propose new Amendments, they should be proposed through the proven process that has worked for more than 230 years. If the Ohio Legislature supports these Amendments, then they should also support the proven approach of proposing and ratifying them.
I applaud the intentions of this Resolution. However, please do not call for this experimental Convention. It is fraught with risk and more importantly, it is not necessary. We have a proven process for Amendments- please do not open Pandoras Box.
It has been said… Those who do not learn from the past are doomed to repeat it.
Let's learn from history on this one..
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