Many thanks to The American Thinker for posting my article on Enacting the Liberty Amendments. The idea of calling a convention of the states to initiate constitutional amendments to return the federal government to something resembling its original constitutional bounds is being much discussed in constitutionalist circles since Mark Levin suggested it as a way of implementing the proposals in his bestselling book The Liberty Amendments. Indeed, recently there was a gathering of interested state legislators at Mount Vernon, Virginia to discuss the idea.
Conservative criticism of the idea is largely based on concerns that any such convention will fall under the influence of leftist legislators and law professors, and propose amendments which would increase rather than decrease the power of the federal government. While such amendments could still be stopped by defeating them in 13 states, they would waste all of the effort and resources invested in such a convention. However, an even more certain problem with a state-called convention would be the one Madison pointed out at the 1787 convention – Article V’s lack of procedures, or of any method to determine procedures, a problem which would make such a convention unworkable. These procedural problems are detailed in an article I have posted online under the title, To Originate The Amendment of Errors: Reforming Article V to Facilitate State and Popular Engagement in Constitutional Amendment.
To give one example, how will votes be allocated at the convention? The default position would be state equality as at the 1787 convention, but many will object to that as a violation of the Supreme Court’s one-person, one-vote cases, and demand some allocation of votes proportional to population. Both would have colorable arguments, and would make it certain that any state-called convention would be tied up in litigation for years as this and other procedural issues made their way up to the Supreme Court. If you can not decide how to count votes, you can not do anything at a convention.
The solution, as elaborated in To Originate The Amendment of Errors, my short book Are We The People? (described here), and on this blog, is to first adopt one of Levin’s and others’ suggestion to amend Article V to allow states to initiate amendment proposals without having to go through the untried, unworkable and archaic mechanism of a convention. My proposal for such an Amendment Amendment would permit any five states to launch an amendment proposal without all the labor and risk of calling a convention. As there would be no convention, there would be no chance for a “runaway” convention. Instead, everyone would know exactly what they are voting on upfront. In this way, grassroots groups could invest their resources directly in promoting their amendment proposal on the state level without ever having to go to Congress or incur the expense and risk of a national convention.