Do We Need a New Constitutional Convention?
In 2007, my book The Politically Incorrect Guide to the Constitution was a New York Times bestseller. Happily, many people were interested in a Jeffersonian alternative to the Hamiltonian version of American constitutional history peddled by virtually every historian and legal academic, and thus judge and lawyer, writing about the topic.
Unhappily, however, many people responded to the book by saying, “Of course we know that liberal judges act that way.” In response, Tom Woods and I wrote 2008’s Who Killed the Constitution?, the theme of which is that it’s not only liberals and it’s not only judges. That book was an Amazon.com bestseller. The most common question it evoked was, “What can we do about this?”
I typically responded, “I’m not in the hope business, I’m a historian. If you want hope, go to church.” Having heard that from me on several occasions, Sirius/XM’s Mike Church asked me, “Isn’t there anything that can be done?” Yes, I finally conceded, if the gigantic inertial force of 200 years of jurisprudential and political tradition could be overcome, we might actually use a remedy the Founders gave us: Article V. Via Article V of the Constitution, we could perform an end-run around the legal establishment and the self-serving Washington elite and restore decentralized, republican government in America.
Mike was intrigued. His producers agreed that this matter merited two entire hours of his show. I posited that we should get other prominent Reaganite Jeffersonians to come on and help lay out the Article V system.
Thus, on April 9, 2010, Randy Barnett, the late Tony Blankley, Bruce Fein, and I participated in an Article V Amending Convention Town Hall on The Mike Church Show. (Here’s the transcript.) In the course of that two-hour event, the leading libertarian legal academic of his generation, a prominent Republican political operative, a one-time top official in the Reagan justice department, and Your Humble Historian touched on every question one could have about the unused portion of Article V of the Constitution.
Article V, the amendment article, describes two processes, one of which has been used 27 times and the other of which has been used not at all. In the first process, two-thirds of each house of Congress refer a proposed amendment to the states, and that provision becomes part of the Constitution once three-fourths of the states have ratified it. In the second process, two-thirds of states may call for an amendment convention to take the place of Congress in proposing an amendment to the states, and that proposal becomes part of the Constitution as soon as three-fourths of the states have ratified it. The second process was included in the Constitution at George Mason’s insistence to deal with situations in which Congress could not be expected to initiate the amendment process because Congress itself was all or part of the problem.
Barnett, Blankley, Fein, and I agreed that this is the way to go. Yet, we said, we’d have to overcome resistance from people who benefit from the status quo. James Buchanan’s public choice theory makes that clear.
The most forceful opposition to what was said in the Town Hall came from radio host Mark Levin. Echoing the anti-convention position of the John Birch Society, Levin knocked Church for advocating an Article V amendment convention. Such a convention would be unmoored from American tradition and apt to “run away,” which would yield dangerous proposals of every conceivable sort. Levin, whose stock-in-trade is to spit epithets such as “idiots,” “morons,” and “back-benchers” at even sympathetic people who disagree with him, came back to the subject time after time. One half expected him to say that Dwight Eisenhower was a Red.
Imagine my surprise when, only a few weeks ago, I learned that Levin’s next book would be … a case for specific amendments to be made to the Constitution via the Article V convention process. Oh, well: Saul of Tarsus was once Christians’ greatest persecutor, and—as Fein’s old boss Ronald Reagan said—“There is no limit to the amount of good you can do if you don’t care who gets the credit.” Mr. Levin, welcome aboard!
Levin’s chief goal in The Liberty Amendments is to propose eleven amendments which will serve to restore the Constitution’s moribund chief components: federalism, republicanism, and limited government. I have proposed repeatedly on Church’s show that this could be done via an amendment that would 1) Make clear that the Interstate Commerce Clause of Article I, Section 8 empowers Congress only to regulate commerce that is interstate (as the Supreme Court recognized before 1937); 2) Empower individual taxpayers and state governments to bring suit for injunctive relief in case Congress exceeds the bounds of its powers, as clarified by this amendment (lawyers call this giving individuals and states standing to sue for injunctive relief) and declare that these questions are justiciable (not “political questions” that the federal courts should dodge); 3) Make clear that the Due Process Clause of the Fourteenth Amendment is about nothing other than Due Process in judicial proceedings—that is, that it doesn’t give federal courts power to invent rights unknown to the ratifiers and does not make the federal Bill of Rights enforceable by federal judges against the states; 4) Repeal the 17th Amendment and give the state legislatures the power of recall over U.S. senators (and thus give state legislatures a check on Congress’s tendency to usurp state legislative authority); 5) Require a balanced federal budget except in time of war declared by Congress; 6) Empower state legislatures to overturn federal judges’ constitutional decisions. (This last could be done by saying that if 2/3 of legislatures vote to do so, it is done, or in some other way.) Fortuitously, Levin’s suite of amendments includes virtually everything in my proposed amendment, plus other good ideas about reining in the administrative state, term limits for federal judges and congressmen, and some other minor matters.
Levin’s book does an excellent job laying out a case for thorough-going reform as a restorative—Mel Bradford said “reactionary,” rather than merely conservative—measure. Unfortunately, it says little by way of direct response to objections raised by the Birchers, the Eagle Forum, and others. I believe that critics of an Article V convention are mistaken in their belief that such a convention could impose radical change on us: just as Congress can, the convention could only propose amendments. Yet to obviate conscientious constitutionalists’ concerns, I favor the interstate compact vehicle Compact for America. Take a look at its Web site, CompactforAmerica.org, for details on how the compact—a legally binding interstate agreement about how the convention would work and what it would consider—can be used to limit an Article V convention to consideration of a specific balanced budget amendment. You’ll also see there an essay by Yours Truly on the ratifiers’ understanding that the states would define the convention’s work and structure ahead of time.
Levin has said repeatedly on his radio program that he knows this course is a difficult one. Yet he notes at the book’s conclusion that we must do what we can, and he rightly avers that the Article V amendment convention is the mechanism the Founders gave us for times exactly like this one. James Madison’s Constitution lies sleeping, but we can awaken it.
Kevin R.C. Gutzman is the author of James Madison and the Making of America.