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Why Rubio’s and Abbott’s Constitutional Convention Is A ‘No Good Very Bad’ Idea January 13, 2016

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

Senator and presidential candidate Marco Rubio and, more recently, Texas Governor Greg Abbott have each proposed calling an Article 5 constitutional convention (a convention of the states).  If I may borrow from children’s book author Judith Viorst’s description of Alexander’s bad day:  This idea is “terrible, horrible, no good, very bad.”  But we are likely to be spared the worst of it because it is also a non-starter which even its proponents surely recognize is pure political rhetoric and not a serious policy proposal.

Article 5 of the U.S. Constitution tells how the document may be changed over time through the amendment process.   Congress is in charge of the process, which can occur in one of two ways:  (1) Two-thirds of both houses of Congress may propose an amendment which, in turn, must be ratified by three-fourths of the state legislatures; or (2) Congress may, upon the application of the legislatures of two-thirds of the states, call a convention for proposing amendments which, again, would only be adopted if approved by three-fourths of the state legislatures.

It is the second route, a convention—which has never been tried before—that Rubio and Abbott propose be taken.  Rubio, who actually opposed this earlier, has provided a broad endorsement on the campaign trail to seek a balanced budget amendment and term limits for members of Congress.  Abbott, by contrast, has developed a lengthy shopping list of 9 amendments (nearly equaling the original Bill of Rights in the first ten amendments) that would do all kinds of things to limit federal power:  empower two-thirds of states to override a Supreme Court decision, prohibit agencies from “creating federal law,” allow a two-thirds majority of the states to override a federal law and so on.  It is not unlike a similar proposal from radio host Mark Levin when his book, The Liberty Amendments (2013), advanced 10 amendments that would be adopted by a convention to save the republic.

This is the right’s idea of an instant solution to decades of growth in federal power.  Let’s just add a bunch of amendments to the Constitution that will tie the hands of Gulliver in Washington.  Oh that it could be that easy.  But there’s a reason this has never been done:  34 states will not agree to call such a convention and 38 states will not approve such amendments.  It is so wildly improbable that I think it’s fair to say that Rubio and Abbott must be advancing it as political posturing.  There is “no there there.”

Further, if such a convention ever got traction, under the law of unintended consequences, it would be as likely to do mischief as good.  Article 5 is entirely vague about the details of such a convention.  Proponents assert that it could be limited to the purposes and amendments that brought it into being, but there is nothing in Article 5 to support that and nothing in the law to prevent other issues coming to the fore.  Liberals have said they would like to overturn the Citizen’s United Supreme Court case, for example—no reason that couldn’t be inserted into the proceedings, along with everyone else’s pet ideas.  Justice Scalia put it succinctly:  “I certainly would not want a constitutional convention.  Whoa!  Who knows what would come out of it.”  Former Chief Justice Warren Burger wrote that such a convention “would be a free-for-all for special interest groups.”

Article 5 makes it difficult to amend the Constitution for good reason:  it should be exceptional to change the rules of the road.  The history of the liberal left has been to find work-arounds to avoid the high bar of the amendment process.  All of Franklin Roosevelt’s sweeping New Deal revolution was carried out with no constitutional amendments, for example, only liberal interpretations of the law by judges.  The National Popular Vote Bill, which seeks to circumvent the Electoral College by requiring all electors to vote for the winner of the national popular vote, is another work-around of the Constitution.

It’s disappointing, however, when conservatives, who should be respectful of the Constitution and willing to do the hard, long political work of protecting it, instead offer the false hope of instant gratification by foolishly proposing a modern constitutional convention.


To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/01/13/why-rubio-and-abbotts-constitutional-convention-is-a-no-good-very-bad-idea/#2715e4857a0b1cf9b1c74f1d

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