A legislative committee will consider “for discussion only” on Monday HJR 87, a deeply alarming resolution calling for a new constitutional convention to rewrite the rules of American government. It is no exaggeration to say this convention could throw the country into chaos and jeopardize our founding document. Kentucky is one of the states whose ultimate position on this issue will make the difference between putting the constitution up for grabs or stopping in their tracks those funding this national effort.
Special interests trying backdoor method to overhaul American government
Since the founding of the country, the constitution has been amended 27 times. Each time, Congress has passed amendments and then the states have ratified them. But Article V of the constitution allows a second method for amendments: states can call a new convention like the one that created the original constitution — which we haven’t done since 1787. If 34 states pass a resolution calling for a new convention, Congress must convene it.
Some proponents claim 28 of the necessary 34 states already have live applications calling for a new convention, using a version focused on a balanced budget amendment. The version like HJR 87 has passed 12 states — including 8 since 2016. It has also passed at least one chamber of the legislature in 10 other states and is being introduced in 18 additional states in 2019.
The Kochs and other wealthy interests are funding campaigns led by the American Legislative Exchange Council (ALEC) and the Convention of States, who are pushing these resolutions hard around the country. Kentucky is considered a high priority target state.
A constitutional convention cannot be controlled
A convention could lead to extreme, wide-reaching and unpredictable changes to the U.S. Constitution and Bill of Rights. Although some backers claim the agenda of a constitutional convention could be controlled, experts say conventioneers would have the power to alter anything and everything about the United States government — just as they did in the original 1787 constitutional convention when they threw out the Articles of Confederation and started over. No state laws attempting to limit a convention will be able to restrain it.
A convention would likely open up the Constitution to whatever amendments its delegates chose to put forward, regardless of whether the convention is originally called to address a particular issue. Delegates to the 1787 convention ignored their state legislatures’ instructions. There are no safeguards to prevent a runaway convention that could lead to harmful changes to our founding charter, as the Constitution itself puts no authority above a convention — including the courts.
As former Chief Justice Warren Burger said:
“[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the Convention would obey.”
The late Supreme Court Justice Antonin Scalia agreed, stating “I certainly would not want a constitutional convention. Whoa! Who knows what would come of it?”
Freedom of speech and religion, the right to vote, equal protection under the law, the right to trial by jury, the separation of powers and more are risk in a convention. In fact all of the federal standards concerning how people can be treated, as well as the rules governing how these standards are set, would be up for revision or rejection.
Powerful interests are likely to be first in line to wield influence on who gets selected as delegates to a convention and what agenda gets considered. That’s why one of the big proponents of an Article V convention is ALEC, the powerful corporate lobby group. There are no laws limiting dollars spent to influence delegates to a convention.
We also can’t depend on the state ratification process for amendments to protect the Constitution from radical changes (Article V says amendments coming out of a convention shall be approved by three-fourths of the states). A convention could create a different method of ratification, such as a national referendum. The convention that crafted the U.S. Constitution ignored the ratification procedures under which it was established and created entirely new procedures.
Protecting U.S. Constitution requires rejecting proposal
Especially with a country so divided, and with power and influence concentrated among a few, now is not the time to reopen the U.S. constitution for potentially wide-ranging revision. The risks for the nation and every single American are very high.
See below University of Louisville law professor Samuel Marcosson discuss the threat of a Constitutional Convention, and read this op-ed by U of L professor Dewey Clayton.