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

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

Houston, We’ve Got a First Amendment Problem October 15, 2014

It was disclosed this week that attorneys for the city of Houston, Texas have subpoenaed sermons and other writings from local ministers who are opposed to the new Houston Equal Rights Ordinance (HERO) championed by its mayor. This would seem to be such an obvious violation of the First Amendment free speech and freedom of religion of pastors that one wonders how lawyers and judges, who presumably studied constitutional law, could have allowed it to get this far.

Annise Parker, the first openly gay mayor of Houston, has made HERO, which extends equal rights protections to gay and transgender residents, a central plank of her leadership platform. A number of Houston pastors have joined a drive to repeal the new ordinance, collecting over 50,000 signatures, with only 17,259 required, to place the matter on the ballot.  The Mayor and City Attorney have disallowed most of the petitions on various legal grounds, and that matter is now in court.

As part of the court action, the city thinks it should review sermons and writings of these ministers, apparently concerned whether they are engaged in politics and electioneering from their pulpits in violation of the churches’ tax exempt status. Before we even get to the First Amendment, however, such tax exemptions are a matter of federal and state law, not municipal authority, so Houston has no business even pursuing that question.  Strike one.

To say that these subpoenas are overly broad would be quite an understatement. The question raised by the lawsuit is whether the petitions collected sufficient legal signatures to support a ballot measure to repeal it.  The arguments pertain to the documentation and form of the signatures, with the city claiming that all but 15,249 of them are legally flawed.  This has nothing to do with what any pastor said or wrote.  So again, even before we reach the First Amendment questions, these subpoenas take strike two.

But most outrageous of all is the obvious violation of the First Amendment. Churches and pastors are specifically protected in their speech and religious practice under the First Amendment.  The only legitimate legal challenge would have to come from the IRS (which has its own conservative witch-hunt reputation to live down) or state taxing authorities.  The latitude given to any Constitutionally-guaranteed rights such as those under the First Amendment is broad indeed, and it would take a lengthy and elaborate case to conclude the pastors overstepped their bounds.  A court-issued subpoena over a repeal election is hardly the right legal setting for this.  Strike three.

The chilling effect on ministers is precisely what the city and its mayor seek, of course, and this they cannot do. This is legal intimidation, pure and simple.  Politicians are not free to outlaw or make legal threats over speech they do not like, or think is politically incorrect, in the face of the First Amendment.

Our society is undergoing a major social transformation in the area of same sex rights. Groups and individuals are working these things out at astonishing speed.  In just the last week, the U.S. Supreme Court surprised everyone by letting some lower court same sex marriage decisions stand without further review, implying either conflict in the Court itself or that this is truly a matter for states and circuits to work out.  The Catholic bishops shocked everyone this week by rethinking the role of gays in the Church and the contributions they make.  To paraphrase a rapper of an earlier time, this is how we do it in a democracy.

Unfortunately the Mayor of Houston thinks it’s her role to work it out for everyone in her city, and to use unconstitutional intimidation if necessary to achieve those ends. In the name of the First Amendment, someone needs to stop her.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/15/houston-weve-got-a-first-amendment-problem/