This article was first published in the St. Paul (Minn.) Pioneer Press
Do you think our political system is working great?
If your answer is “no,” then you should know our country’s founders inserted in our Constitution a way of solving the problem: The people, acting through their state legislatures, can propose reforms Congress does not want.
Without this provision, Americans likely would have rejected the Constitution. Even if they had accepted the Constitution, we could not have forced Congress to propose the Bill of Rights, popular election of U.S. Senators, or presidential term limits. Our government could be even worse than it is now.
The reform process is easy to understand. Two thirds of the state legislatures (34) require Congress to invite representatives of the state legislatures (“commissioners”) to a temporary meeting called a convention for proposing amendments. The meeting has but one purpose: to propose (or not propose) one or more constitutional amendments for public consideration. This is a power Congress has every day of the week.
Of course, the political establishment doesn’t want you to exercise this constitutional right. So they use the same tactics vote-suppressors use: disinformation and fear. Sometimes they induce people who have not studied the issue to help them.
An example is the recent column by David Schultz, a political science professor. (In my university years, I learned professors are as prone as other people—maybe more—to expound on things they haven’t researched.) Professor Schultz claims (1) we don’t know how the convention would work, (2) we can’t control its scope, and (3) it might be captured by special interests.
Professor Schultz starts by getting the convention’s name wrong. He calls it a “constitutional convention,” even though the Constitution calls it a “convention for proposing amendments.” There is a big difference. This convention has no power to re-write the entire Constitution.
Then he says, “In cases such as Baker v. Carr . . . and Coleman v. Miller . . . the Supreme Court declared that the issue of amending the Constitution is a topic textually committed to Congress.”
But neither case held any such thing. Baker v. Carr dealt with legislative apportionment, not constitutional amendments. Coleman v. Miller ruled that two aspects of ratification—not the entire amendment process—are entrusted to Congress. The claim that Congress can control the entire process appeared only in a non-binding minority opinion. In the ensuing 79 years virtually every court that has reviewed that opinion has rejected it.
Professor Schultz writes that we know nothing of convention operations. Actually, we know a great deal. Both the historical record and the Supreme Court tell us a convention for proposing amendments is a “convention of the states.” We have held over 40 conventions of states (most recently in Phoenix, Arizona in September, 2017), so we know all about how they work.
He also complains that “there are no rules limiting what can be debated.” That is also inaccurate. Conventions of states are limited to the agendas the states set for them. (Despite some claims to the contrary, this limit also was respected by the 1787 Constitutional Convention.)
Professor Schultz speculates about control by special interests (Compared to what? Congress?) . . . and “there is no framework of law that addresses what role groups or money would have . . . .”
We faced a similar objection before, and it proved groundless. When Congress proposed the amendment repealing Prohibition, it chose ratification by state conventions rather than state legislatures. Some people foresaw disaster because of a lack of national rules. But the states handled things fine, and ratification occurred almost without a hitch.
A convention, unlike Congress, is temporary. Commissioners serve a very short term—too short to develop relationships with lobbyists. The state legislatures who oversee commissioners are bound by campaign and ethics laws often stricter than federal laws.
Finally, Professor Schultz claims a convention could be dangerous. This is a funny way to characterize a short-lived task force subject to state legislative control and without any governmental authority of its own. It is “dangerous” only to those who benefit from the federal government’s present dysfunction.
The convention procedure is both a path toward popular reform and a crucial constitutional right. Americans should reclaim it as our own.