The Battle to Stop the Constitutional Convention

January 16, 2009

By Tom DeWeese

The phone call came to my home late on Tuesday night telling me that the next morning the Ohio House of Representatives would be holding hearings on a resolution to call for a Constitutional Convention. We knew this was not good news. But the news was even worse. To our shock, records indicated that if Ohio were to pass such a resolution, it would be state number thirty-three. Only thirty-four states are needed to officially kick the convention apparatus into gear. We were only two states away! And we had only 18 hours to prepare for battle.

Now, sponsors of the resolution were not wild-eyed Leftists who sought to purge the Constitution. Rather, they were patriotic Republican conservatives who were vitally concerned about the massive spending spree and bailouts taking place in Washington, D.C. The issue, said the sponsors, was to add a balanced budget amendment to the U.S Constitution.

So why were we so concerned about the idea of a “Con Con?” Why were we ready to fight to stop it, especially if it could lead to controlling the outrageous waste of tax dollars in Washington? The reason is simple. These legislators were operating on very bad advice.

The fact is, once 34 states petition Congress to convene a Constitutional Convention, the matter is completely out of the States’ hands. There is absolutely no ability to control what the delegates do in the convention. Attempting to instruct delegates to only discuss a balance budget is absolutely impossible. Instead, once the convention starts the delegates become super delegates which can take any action they desire concerning the Constitution. In short, at the convention the Constitution can be literally put on an operating table at each delegate can take a scalpel (pen) to it and change any section or even the entire document if they desire.

Section V of the Constitution, which covers the issue of Constitutional Conventions and Amendments, gives absolutely no guidelines as to how it will be run, how delegates can be selected and who can do the selecting. Once the 34 states make the request, the entire matter is in the hands of Congress to decide.

The current Congress could control the entire delegate selection. States may not even be represented. If the states are allowed to choose delegates then what would be the method? Will the governor or the state legislature appoint delegates? Or could it be a bicameral panel or blue ribbon commission?

Or could it be a plebiscite – a vote of the people? If so, then who would be eligible to vote? Would it be all eligible voters? Or taxpayers only? Or would we possibly, in the interest of “enfranchisement” allow all citizens and potentially foreign nationals to vote for this “special election?” There are no guidelines and anything is possible.

And what would be the qualifications to be a delegate? Would it be exclusively lawyers? A mix of professionals? So-called “proportional representation” of all special interest groups – NGOs. Will some be excluded because of “extreme” convictions? What will the criteria be? All of these choices would be made by Congress – that same one now controlled by Nancy Pelosi and Harry Reid.

Now some have argued that no matter what such a convention does, it still must be ratified by two thirds of the states, making it very difficult to do bad things against the will of the people. A history lesson is in order.

There has been only one Constitutional Convention in the history of the nation – that was in 1787. At the time, the nation was held together by the Articles of Confederation. The states were having a difficult time with commerce among themselves. So it was decided to hold a Constitutional Convention to simply discuss how interstate commerce might be better organized. As the delegates were selected, some were given specific orders by their states to discuss nothing else beyond the commerce issue.

However, as soon as the delegates arrived at Independence Hall in Philadelphia, they closed and locked the door, pulled down the shades and met in secret for a month. When they were finished, they had created an entirely new nation. We were very lucky that the convention was attended by men like Ben Franklin and James Madison. They produced the most magnificent document ever devised for the governance of man.

Today, we have Nancy Pelosi and Harry Reid. Do you trust them to produce a document of such magnitude? Or would they at least take care of the present one? We live in an era when the Supreme Court looks to foreign laws to assure our own are worthy. We live in an era when many believe that the Constitution is out of date for our times. They are itching to get their hands on the old parchment. And as history has shown, they can do anything they want to it, including writing a completely new document.

And there is more. Concerning the argument that whatever they do, the states must ratify it – thus serving as a safeguard to tomfoolery, consider this fact. The Articles of Confederation required that any changes be ratified by 100% of the states. That was the document that was the law of the land – until something else was put into place. But, when the new Constitution was put to the states for a vote of ratification, they needed only two thirds to approve it. Why? The fact is, Article V of the new Constitution was literally in power – even before the Constitution which contained it was approved. Now, what do you think Reid and Pelosi and company would do with that precedent? What if the new document said ratification only required a vote of Congress – or some special commission? The precedent of 1787 says that could happen. So much for protection in the states.

These are the reasons why my colleagues and I looked at the Ohio resolution with such horror. There has never been a worse time in the nation’s history to consider changing this grand document. The Con Con delegates could literally put the Constitution on an operating table and use their scalpels to slice it up, creating an entirely new form of government. Do Americans really want to risk that in these uncertain times?

Also, the actual number of states said to already have ratified the Con Con varies with each inquiry. Most records indicate that thirty-two states have already passed resolutions to call for a Con Con. But they did so in the mid 1970s. Those resolutions had remained dormant for thirty years. How long is a resolution good for? Does it last forever? Or does it expire with the legislature that passed it? Most sources also indicate that three of those states have actually passed resolutions to rescind their petitions. Other sources say 37 states have passed Con Con resolutions on a balanced budged issue and that 10 states have passed resolutions to rescind. Regardless of the numbers, proponents said they found no provision in Article V for states to rescind a call for a Con Con after it was made. They say it’s like trying to “unring a bell.” Instead they intend to push for resolutions from a full 34 states and then challenge those rescinded in court. That is not a fight any of us want to take on. The bottom line is, the situation is very confused and only these points are clear – there are no rules, no one can control what is debated and therefore the effort to press for a Con Con is very dangerous.

So there we were, the night before the hearings in the Ohio House. Already on the legislative calendar was a scheduled vote on the resolution, waiting until they could get these pesky hearings out of the way. Only they hadn’t counted on the power of our grassroots network.

My associate in Ohio, Chuck Michaelis, working with a network of organizations, was able to get 10 people to converge on the hearing room in the Ohio State House to testify against the resolution. No one was there to testify on its behalf. Meanwhile, as the hearing was underway, my American Policy Center issued a nationwide “Sledgehammer Alert” urging activists to call and e-mail Ohio legislators. As the hearing went on, hundreds of calls and e-mails began to pour in. By the time the hearing was over, the chairman of the House Judiciary Committee, Lou Blessing, announced that a terrible mistake had been made and no vote would be taken on the resolution.

Undaunted, a defiant Senate, the next day filed the resolution there. But within a few days it was clear the battle was over. In the first week of January, the Ohio Legislature announced that the issue was dead, at least in Ohio.

However, on the same day the Ohio legislature was issuing that statement, we received word that Senator Emmett Hanger of Virginia intends to introduce the very same resolution into the Virginia legislature soon. The battle begins anew.

Update (Full News Release from American Policy Center): On January 11, 2009, I received a threatening e-mail from a man named Bill Walker. He is co-founder of a group called “Friends of the Article V Convention,” and one of the proponents of the Con Con. Walker said he had “irrefutable” evidence that at least one of the documents we were using for our anti-Con Con arguments was a fraud. He was refereeing to a famous letter to Eagle Forum President Phyllis Schlafly from former Supreme Court Chief Justice Warren Burger.

The Burger letter is a major and damming piece of evidence against a call for a Con Con because is verifies our fears that states could not control the subject matter discussed at the convention. In the letter, Burger stated, “The Convention could make its own rules and set its own agenda.” This is damning evidence to those who continually assure legislators that they can control the subject of a Con Con.

Walker obviously needed to discredit the letter for his own purposes, and chose to threaten me in hopes of scarring me into stopping use of it. In his e-mail to me he said, “Unless I have heard from you that you are publicly refuting the letter and thus the assertions in it, I intend to state you knew the letter was a fake all along.” He also threatened to “destroy…” my public credibility.

My first act was to verify with Phyllis Schlafly that she indeed had the letter and that it was from Burger. She did and it was. She has now posted it on the Eagle Forum web site.

APC’s position is clear. We oppose a Con Con because the subject matter cannot be controlled and we have no guarantee that we can win state ratification fights if changes to the Constitution are offered. We fear, instead that in today’s climate of radical socialism and American ignorance about the Constitution that this is the worst possible time in our nation’s history to start to mess with the greatest governing document of all time. We will continue to oppose any and all attempts to do that, no matter how noble the reason for the call. Our intention is to protect the Constitution, not, as I’ve been accused, to destroy it.

Tom DeWeese is the President of the American Policy Center and the Editor of The DeWeese Report. The DeWeese Report is now available online.

Tom DeWeese
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Tom DeWeese is one of the nation’s leading advocates of individual liberty, free enterprise, private property rights, personal privacy, back-to-basics education and American sovereignty and independence.