March 12, 2022
Convention of the States: Yes, No, and a Third Option
By: Art da Rosa, Idaho State Senate Candidate, District 28 and Jenny Smith, Restore Liberty in Idaho
Many have felt that the federal government has usurped powers that were not delegated to it, as well as commandeered the powers delegated to the state and the people respectively. We feel a loss of freedom, while the federal government is growing more and more socialistic. In exasperation, many have suggested the need to call for a Convention of the States or Constitutional Convention (Con-con). Those that have argued for a constitutional convention have proposed the following six amendments to be approved and implemented:
1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress
2. Term limits on Congress
3. Limiting federal overreach by returning the Commerce Clause to its original meaning
4. Limiting the power of federal regulations by giving an easy congressional override
5. Require a supermajority for federal taxes and repeal the 16th Amendment
6. Give the states (by a 3/5ths vote) the power to abrogate any federal law, regulation, or executive order
The Idaho Legislature is contemplating a bill–right now–on this topic. But, should we? I want to lay out the pro and cons of the topic of having a Constitutional Convention and to present an alternative. There is a better way.
Those that argue for a Constitutional Convention, talked about a runaway Washington, D.C with no practical way to right the ship. To fix the problem, they want to organize a convention, construct, and implement the above-proposed amendments to the Constitution. The proponents of the convention have not indicated that they will stay with the above six amendments only.
The argument against a Constitutional Convention is that once convened, the delegates could make any changes to the Constitution. The original Constitutional Convention took place in 1787, and it abolished the then constitution, known at that time as the Article of Confederation, altogether. Rather than fixing the constitution, we run the risk of losing the Constitution altogether.
I believe the supporters of a new Constitutional Convention have the best interest of our nation at heart. They are like-minded in the spirit and soul of our founders who are known as s patriots. I want to present two prospective perspectives from our founding fathers on this issue:
James Madison, known as the Father of the Constitution, wrote Federalist 49. He warned against having another Constitutional Convention, as it will be voted along the political party line, and fueled by the passion of the people rather than well-thought-out reasons. Note, to understand this argument, one must read Federalists 36 and 37 where Madison detailed the quality of the delegates and by what power they were guided by (God).
Following Madison’s argument, I do not trust that 34 states could send delegates with the proper understanding and spirituality to be in a convention, as our constitution was written for a moral people who subjected themselves to God. Morality itself is no longer governed by nature’s God, but each individual‘s personal beliefs with no rod by which to measure right from wrong.
Thomas Jefferson, one of the brightest presidents we had, foresaw the situation that we are in, wrote (Jefferson letter to Major Cartwright) that if America should have a second constitutional convention, we need to do the following first:
1. The citizens need to organize themselves first. We call these grassroots organizations. He called this groups Wards. Group of citizens that get together to help each other, discuss the events of our nation, and act accordingly.
2. Strengthen the states, as each of them must recognize their duty to resist the federal government.
Only after these conditions are fulfilled will we be able to have a successful constitutional convention.
Article V of the Constitution delineated several scenarios where a constitutional convention is called, along with the number of states needed to pass or ratify an amendment to the Constitution, two-thirds or three-quarters of the total states. So, which is it? Note that the supporters of the Convention of the States affirm a two-third majority is needed to call for a convention.
The confusion came in 1913 when the 16th and the 17th were passed by the federal Legislative Branch on a two-thirds majority but were not sent to the States to be ratified. Since that time, the amendment process was “relaxed.” Following that argument, the supporters of a Constitutional Convention affirm that 34 states are needed to call for a convention or to force a passage of the amendment. In this case, I tend to agree with them.
Following these lines of argument, I see an alternative. The objective of the Constitutional Convention is to establish a list of amendments to resist the usurpation of the federal government.
Additionally, the Idaho GOP Platform further indicates that it would support an amendment to rescind the 17th Amendment (election of US Senators by popular votes). Idaho alone cannot do it. But, if 33 other states pass a similar bill, then a new amendment is formed.
In other words, Idaho can pass a Constitution Amendment bill, work with 33 other states to pass it. We will have a new Amendment. Bypassing all the negative consequences of a convention. And duplicate the effort for the other amendments contemplated by the proponents of the Convention of the States.