Ideas that sound wonderful when painted with a broad brush often wind up on the cutting room floor, hacked apart in the effort to solve real or imagined logistical problems.
The devil, they say, is in the details.
I got to thinking about that while reading an excellent article in the Wall Street Journal last Thursday. Written by James LeMunyon, a member of the Virginia House of Delegates, the article made a strong case for the calling of a convention under Article V of the United States Constitution.
Mr. LeMunyun skillfully debunked the hysterical cries, long emanating from the John Birch Society on the right and liberal law professors on the left, that such an effort might produce a “run away convention” which, they claim, could even repeal the Bill of Rights.
Those fears, trumped up and trumpeted by people who expect the Supreme Court to amend the constitution at every term, and who believe they have more chance of influencing the court than controlling a convention, have made the task of true constitutional reformers a rocky one.
The truth, of course, is that no proposed amendment becomes part of our constitution unless and until it is ratified by three fourths of the states. Thirty-eight state legislatures would include at least 75 chambers of elected representatives or senators.
The notion that there is any real possibility that there would ever be that kind of consensus to repeal the Bill of Rights is patently preposterous.
The only reason the “run away convention” battle cry gets any traction is because so few Americans know anything about the Article V convention; why it was put in the constitution, what it does and how it would work.
One of the most vocal opponents of an Article V convention is conservative gadfly Phyllis Schlafly. In June of 1988, answering her inquiry, Chief Justice Warren Burger wrote that he considered a convention to be a grand waste of time.
Curiously, Schlafly, who excoriates activist judges, failed to realize that Burger, as Chief Justice, was simply defending the power of his court to rewrite the constitution. Of course he didn’t want a convention. The Supreme Court is part of the federal establishment. And they don’t want people talking about term limits for justices, either.
Schlafly is still writing in opposition, even as the convention movement is starting to take hold around the country. She warns that the big states would control a convention and small states “would be irrelevant.” That’s a strange argument. The Article V process gives no advantage to big states. Quite the opposite, both the calling of the convention by two thirds of the states,and the ratifying of amendments by three fourths of the states, are specifically state by state votes, which make Delaware or Wyoming the equal of California or New York.
Burger was right about one thing, however. Nobody can set the convention’s agenda. Not Congress, not the state legislatures. The constitution says the convention is for proposing amendments. That’s plural. It means that the convention sets its own agenda, decides what amendments to propose.
Article V is clear. When two thirds of the state legislatures demand it, the Congress must call the convention. The logic of that requirement is pretty obvious. If it takes 34 states to call a convention, it must take 34 states to hold a convention. Without a quorum, the convention could not function.
Convention delegates would not be federal officers. They would be selected as provided by law within each state. They would represent their states, and be answerable to their state legislatures.
Just as it was in Philadelphia in 1787.
There was no need then, and there is no need now to concoct a spider web of rules, regulations, and provisos before calling a convention.
Those who insist on debating the details are usually just looking for devils.