Constitutional Convention


Constitutional Convention (Con-Con)


Rolling the Dice with Constitutional Conventions
by Dan Comstock - March 26, 2011

Constitutional Convention of 1787
Constitutional Convention of 1787

The current Texas State Senate passed a resolution to consider making application for a Constitutional Convention for the purpose of amending the United States Constitution.  The stated purpose would be to create a Balanced Budget Amendment making balancing the Federal budget mandatory.  In that context, I recently had the opportunity to briefly speak to State Representative Gary Elkins and State Senator Dan Patrick regarding my concerns about a Constitutional Convention (or even threatening to have one).  I applaud the motivation for which John Cornyn has suggested that each State consider making application for one.  I greatly respect the very thoughtful and sincere reasons articulated by both Gary Elkins and Dan Patrick, for considering the possibility of having one if Congress fails to balance the budget.  However, I believe that well intentioned as it is, we should approach the subject of balancing the budget in a different manner.  Congress has the power to address such things as waste, entitlements and the size of agencies of questionable value.  The fundamental question is whether the recently elected members have the bravery and the vision to tackle these very thorny issues related to bringing our Federal Government into the control of “We the People”.

It is fair to say that a Congress that cannot bring itself to balance the budget would seem unlikely to be able to to initiate a Balanced Budget Amendment.  The logic seems to follow that in order to have a balanced budget we must have a Balanced Budget Amendment in place; and, therefore the States must act in the only way they can which is to apply for a Constitutional Convention.  In that line of thinking, the States must at least threaten to initiate the process to get Congress to act positively.  This I believe would be foolhardy and would amount to either a bluff which could be called or an action which might be lamented.  The unanticipated results that are possible stemming from a Constitutional Convention should give pause to a nation that has never amended its Constitution in this manner since the Articles of Confederation were replaced in their entirety by the United States Constitution.  Let us not now roll the dice with the Bill of Rights and a Constitution that has fundamentally worked for over 200 years.

There is no need to alter the Constitution on an issue (e.g., balancing the budget) that is clearly within the power of the Congress to enforce already.  Nothing in the Constitution prevents Congress from doing its duty and responsibly addressing itself to balancing the budget.  On the other hand, a Constitutional Amendment might very well contain language which could become a burden in the form of unforeseen and unintended consequences.  If it were not well crafted it would be in great danger of being imperfectly followed.  When that happens, the Constitution itself becomes weaker, subject to endless challenges and growing cynicism.  Changes to the Constitution should be reserved to those that are truly needed; and, otherwise attention should be given to the careful adherence to the Rule of Law as it exists in the Constitution.  When the Constitution clearly needs to be changed, the ways and means are available under Article V.

Proposals to amend the Constitution can be made either by:  (a) two thirds of both houses of Congress; or, (b) two thirds of the legislatures of the States.   When Congress makes the proposal, the ratification process is limited to the specific amendment(s) spelled out by the Congressional proposal.  When the State Legislatures make the application, the application is for a Constitutional Convention for the purposes of proposing amendments.  This Convention is not necessarily limited to the original purpose envisioned by those State Legislatures.

Ratification is accomplished either by:  (a) three-fourths of the legislatures of the States; or, (b) three fourths of Conventions held in those States.  The mode of ratification, whether by State Legislatures or by State Conventions is proposed (i.e., selected) by Congress and is independent of the manner in which the amendment process was initiated.

Amending the Constitution for the purpose of accomplishing a political aim for which the Congress already has the power to enforce, is in stark contrast to amending the Constitution to make a needed change in order to further restrict or empower in some way the Legislative, Executive or Judicial Branch of Government.  By way of illustration, let us consider the issue of abolishing slavery in the United States.  When the Emancipation Proclamation was enacted, it was done so in the context of the War Between the States.  Those particular slaves in the hostile States were made free at that time as part of temporarily “ruling” the Confederate States pending a return to normalcy.  Abraham Lincoln had great latitude in that regard being involved in the Civil War and the goal of preserving the Union.  Even then, under the Constitution, Congress did not have the power to abolish slavery in its entirety.  That could only be done by amending the Constitution.

Congress proposed an Amendment to the Constitution to abolish slavery in its entirety within the jurisdiction of the United States and to give Congress the power to enforce it.  Amendment XIII was ratified by the States on December 6, 1865.  Congress proposed an Amendment to the Constitution to grant citizenship to those former slaves and to give Congress the power to enforce it.  Amendment XIV was ratified by the States on July 9, 1868.

One would think that those two amendments would have solved all of the civil rights problems with which our nation was burdened for many years.  The fact is that Congress had the power to act and failed to do so for many years.  When Congress did get around to acting, it unwisely created many new problems in the form of busing, reverse discrimination, welfare in the form of self-esteem destroying entitlements, when just forthrightly enforcing the Constitution from 1868 onward would have likely achieved more positive results in a shorter period of time.

Retired Chief Justice Warren Burger, in a letter dated June 22, 1988 spoke out strongly against the idea of having a new (second to the original one) Constitutional Convention.  The following excerpts are noted:  QUOTE:  ….. I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention….. Our 1787 Constitution was referred to by several of its authors as a "miracle." Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention. I have discouraged the idea of a Constitutional Convention, and I am glad to see states rescinding their previous resolutions requesting a Convention. In these Bicentennial years, we should be celebrating its long life, not challenging its very existence. Whatever may need repair on our Constitution can be dealt with by specific amendments.  UNQUOTE.

My belief is that all State applications for Constitutional Conventions should be rescinded.  We must vote into Congressional office those who will vigorously pursue the values of Constitutional and limited Government, and vote out of office those who are unwilling to make a 100% effort in that regard.

March 26, 2011

Dan Comstock
HCRP Pct 759 Chairman, SD-7
Houston, Texas USA

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