Wednesday, October 13, 2010

Article V Convention: Is It A Good Idea?

As citizens struggle to figure out how to rein in a runaway federal government, some Constitutional scholars are taking a closer look at the pros and cons of an Article V Convention as a way to pass amendments that will help limit the size of government:

In August, Missouri became the latest state to rebel against the new national health care law when 71 percent of voters supported a ballot initiative rejecting the legislation's requirement that individuals purchase government-approved insurance. Several other states will consider similar measures on the ballot this November.

However satisfying this backlash against ObamaCare may be to opponents of the law, these state-based efforts could all be for naught if the U.S. Supreme Court sides with Congress and rules that the legislation's individual mandate is constitutional.

Such a decision would have far-reaching consequences, giving broad new power to the federal government over individuals and states. It would mean that the interstate Commerce Clause would have been interpreted so broadly as to allow the federal government to regulate the activities of people who choose not to engage in commerce, and within a health insurance market where businesses aren't even allowed to sell their products across state lines. It would represent the culmination of decades in erosion of the concept of the separation of powers between federal and state governments, and the boldest example of congressional over-reach in the age of Obama.

In that scenario, short of repeal, the only remaining way to fight the law would be to amend the Constitution. Given how polarized the modern U.S. Senate is, it's highly unlikely that a proposed amendment would garner the necessary 67 votes needed to amend the Constitution in the traditional manner. Yet the Founding Fathers left the states one last check on federal power.

Under Article V of the Constitution, "Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States."

The Constitution has never been amended through a convention of the states, and this route remains controversial, with many conservatives fearing that the meeting would turn into a circus in the modern media age, and open the door to a wholesale rewriting of the nation's founding document. Yet a new body of research suggests that these fears are unwarranted, and that there are enough checks built into the system to prevent what scholars refer to as a "runaway convention." With state legislators and grassroots activists searching for ways to limit the abuses of Congress, the possibility has begun to generate more chatter.

The article is lengthy but well worth reading as it closely examines the pros and cons of executing this Constitutional option.

Hat tip: The Volokh Conspiracy

1 comment:

Bill Walker said...

As noted in the comments following the article, readers should go to and read the material there. A convention is not an "idea" it is a constitutional requirement and as the official public records prove, Congress is obligated to call such a convention. The question therefore is not whether it is a "good idea" but what will be done at the convention when Congress calls it.