Rolling The Dice With Constitutional Conventions

March 27, 2011 7:51 am 11 comments

Photo by Mike Licht,

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 I 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 and 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.


  • Bravo. Bravo. A thousand times bravo.

    Imagine a ‘Constitutional Convention’ that includes the like of Barney Frank, Al Sharpton, Jesse Jackson, Jerry Brown, Nancy Peloci, Chris Dowd, et al.




    • Agree that a new Constitutional Convention is risky, but how much riskier than a Congress of unchecked power as we have now. The States may apply for such a convention without any specific stated purpose. The Convention may propose any number of amendments – but it is the Legislatures of three fourths of the States that can ratify or reject the amendments. If we are unable to trust our Legislatures, then perhaps our Republic is too far gone anyway.

      • I understand and maybe we have already gone too far. The elected already have the power to address these concerns but they have refused to use the power they have.

        We do NOT need to open up our founding documents for a re-write the senate can house can do this….without opening up our founding documents…

        • Bill, your (mine, too) reluctance to ever see a Constitutional Convention – ConCon – is very understandable. But our reliance on Congress to do what is right and fitting . . . well, it is not going to happen. Oh, they may pass an occasional piece of legislation that we applaud, then the next Congress will undo it or screw it up. Obviously, we cannot depend on the Administration or the Courts to defend and protect the Constitution. I believe that a ConCon is our best hope for bringing the Government back under control of the people.

          • D.J. I understand but they can not guarantee they will only do one thing. This opens up ALL our founding documents.

            What happens if they decide that the first amendment needs to change? Or what if they decide the 2nd amendment needs to change?

            They can do anything they want and i do not trust them. The US House and Senate have the tools to get the job done…They can amend the Constitution without opening up all the documents. Thats the safe and right thing to do.

            We have an administration that does not even obey the currant Constitution so for me i can not trust them

            Here in Texas our House has 101 Republicans and they are all arguing because none of them want to cut there spending. We can not let them under the hood..

  • When people handle their everyday jobs, they are sometimes given more responsibility. When people do not handle their everyday jobs, it is normal to reduce their responsibility or remove them entirely from that job. Let’s not give people who have not profoundly earned our trust the power to tinker with the founding documents. Furthermore, when you think of a Con-Con think of: all kinds of pressures being brought to bare; subtle word changes which nobody notices until that “Eureka” day – in court; people of leftist persuasion marching in the streets and climbing all over the State Capitols; compromises that seem benign at the moment but at a later date reveal themselves and their malevolent agenda; and, if we cannot keep the government from growing even when we have majority what makes us think we can control a Con-Con.

    • Dan, I strongly stand beside you on this issue. A con-con is like opening Pandora’s box to all of the evils of the socialists in the Democrat party. We must demand Congress do its job to balance the budget AND reduce the size and scope of our federal government. Balancing the budget is a good start, but it is not enough. Spending must be reduced and the Gennie of liberal entitlements must be shoved back in the bottle!

  • It appears to me that the Constitution has been “interpreted” far beyond original intent – as in Kelo etc.. I see no more “rolling the dice” with a ConCon than with a perpetual and ineffectual Congress – both can initiate proposed Amendments, but neither can ratify them. I would like to see Congressional term limits, less-than-lifetime appoints for Federal Judges, and a balanced budget amendment; or at least a healthy meaningful debate on these issues. None of these will emanate from Congress.
    And you’re right: the close scrutiny and involvement of the people is crucial with either a Congress or a ConCon.

  • I read some of the comments here, and there seems to be some confusion as to representation. Each state attending chooses the number and content of the delegation representing the state. The delegates are generally not the elected representatives in office. In fact, if so it is desired by the representatives of the convention, neither the Federal or State legislatures have any say in the matter. There needs to be a minimum of 38 states represented. If 75% of the represented stated ratify the Amendment, then it becomes part of the Constitution.

    By using this method, the current Congress and President have no power to oversee, veto, or change the amendment in any way. The States can modify, limit, and/or designate any power or authority the federal government has. And, they can pass as many amendments as the Convention decides during the session.


      Consider that the delgates may be hand-picked by the State Legislatures no elected by the people.

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