Wednesday, August 14, 2013

What could go wrong in an Article V convention?

Advanced apologies if this is repetitive in some way.

Glenn Reynolds asked the question of what happens if the states call for an Article V constitutional convention, and the Congress refuses to act?  What do you do about this?  This and other questions need to be addressed before an Article V convention is sought.

One possibility is that the states calling for the convention decide to go on their own and do it anyway without the blessing of Congress.  This is rather risky for Congress, the convention, and the nation at large because in such a scenario, the possibility is greater for a runaway convention.   For if Congress doesn't call for one, as is required under Article V, they will have signaled their opposition.  Those who intend to change the Constitution will not fail to notice the Congress' hostility toward their obligations under the existing document.  If such exists, there can be no other peaceful recourse but to go on your own and that could lead to a more unpredictable outcome.  If Congress, or the President decides to preempt the convention by force, a dreadful crisis will ensue.  The very legitimacy of the government shall then be in question.  The country could be plunged into civil war.

Now, if the Congress does honor its obligation to call for the convention, it can claim, if any controversy shall arise, that it did its part.  If it does not, it will be complicit in the resulting crisis if the convention does go runaway.  The Congress does have some power and influence here even if the convention is held, it dare not forfeit it away.  One thing that the Congress can do legally is to preempt any attempt by the convention to ratify the results of the convention in a way that is not in accord with the Constitution itself.  That is to say, if the Congress refuses to act, how then could they object if the convention then specifies a ratification mode that is not in accord with the Constitution?  The Congress, in failing to oblige the duties set forth in the Constitution, can hardly be credible if the convention adopts a ratification mode that the Congress itself finds objectionable and not in accord with the Constitution when Congress itself wasn't faithful to it either.

Article V says the convention can propose amendments only.  Now if the Congress calls for the convention as requested by the states, and the convention exceeds its authority, then the Congress will have the high ground and can legitimately terminate the process, since it would be illegal.  But if it didn't obey the Constitution, and refused to do its duty in calling for one, it can hardly complain when the convention goes runaway.  So, the convention must stay on the up and up, or it is in hot water.  It should behave itself then, as Congress will hardly be indifferent towards the proceedings.  Neither shall the President, by the way.

If everybody plays by the rules, there can be no controversy.  The amendments would be submitted to the states and if ratified, will become the law of the land.

So, there can be no controversy as long as everybody plays by the rules.  As soon as the rules are disregarded, the situation goes into crisis.  The incentive is to play by the rules.

It would be well to consider why the Convention is being called in the first place.  It would be called because the government is NOT playing by the rules.  The greater probability is that Congress will cheat, not the Convention.  So, if Congress does cheat, it will force the Convention to go rogue, and plunge the nation into crisis.  An Article V convention is legal, its suppression is not as long as the convention sticks with proposed amendments, and not craft a new Constitution in total.

What if Congress cheats, and the Convention goes rogue?  Then that is a definite crisis with an indeterminate outcome.  But consider this:  if Congress does cheat, then what protection does our current situation give us?  We should push the envelope and find out.  For if the Congress and the President will not honor the Constitution as written, we had better find out now than to wait until it is too late.


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