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Howard's Commentary - What if the Constitution Went Away?

Many things we never thought were possible in America have now become our reality.

A narcissistic, childlike, shallow-thinking bully is our President. A man who has shown support for white nationalism philosophies is his right hand man. The press, intelligence community, and judiciary are under attack from the White House. Many Americans support a theocracy where Christianity would be the law of the land.

But the shining star that fuels hope among us in all of this is the US Constitution.

The document that enshrines our beloved freedoms of press and religion (and yes, the right to bear arms). That establishes our cherished principles of equal justice for all. That provides our important system of checks-and-balances.

By his words and actions, President Trump makes it clear he'd rather not be constrained by this clunky old document.

And we need to be vigilant and keenly aware that the Constitution CAN be changed and that efforts are underway to do so.

Last year, West Virginia joined 27 other states calling for a Constitutional Convention to create a balanced budget amendment.

Most of us are familiar with Constitutional Amendments proposed by Congress and ratified by the States such as the 25th Amendment on Presidential succession. That process itself limits the action. A single issue pre-defined with a yes or no vote.

But Article V of the US Constitution allows for a constitutional convention when called for by 2/3 of the state legislatures.

During last year's debate in WV, the WV Center on Budget and Policy called it a "potentially dangerous proposal...that could endanger our most cherished freedoms".

Pushing aside the merits of the proposed amendments in SCR 10, there is a broad legal consensus that it would be difficult to limit or control a convention of states even if states specify it is only for single purpose. As the Center on Budget and Policy Priorities highlights in a recent report:

A number of prominent legal experts have warned that states cannot control a constitutional convention or that calling one could open up the Constitution to significant and unpredictable changes. For instance:

"I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?"a
Former Supreme Court Justice Antonin Scalia

"[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. After a Convention is convened, it will be too late to stop the Convention if we don't like its agenda."b
Former Supreme Court Chief Justice Warren Burger

"There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights."c
Former Supreme Court Justice Arthur Goldberg

"First of all, we have developed orderly procedures over the past couple of centuries for resolving [some of the many] ambiguities [in the Constitution], but no comparable procedures for resolving [questions surrounding a convention]. Second, difficult interpretive questions about the Bill of Rights or the scope of the taxing power or the commerce power tend to arise one at a time, while questions surrounding the convention process would more or less need to be resolved all at once. And third, the stakes in this case in this instance are vastly greater, because what you're doing is putting the whole Constitution up for grabs."d
Professor Laurence Tribe, Harvard Law School

"[S]tate legislators do not have the right to dictate the terms of constitutional debate. On the contrary, they may be eliminated entirely if Congress decides that state conventions would be more appropriate vehicles for ratification. The states have the last say on amendments, but the Constitution permits them to consider only those proposals that emerge from a national institution free to consider all possible responses to an alleged constitutional deficiency. . . Nobody thinks we are now in the midst of constitutional crisis. Why, then, should we put the work of the first convention in jeopardy?"e
Professor Bruce Ackerman, Yale Law School

The ALEC-afiliated Balanced Budget Amendment Task Force is working more states this year. A separate group is working on more wide-ranging convention call that would allow the convention to take up any issue it wants--amend the founding document in may it chooses.

Many legal scholars think even the so-called "single issue" convention would be able to run rogue and propose other amendments.

The balanced budget amendment convention is within striking distance of becoming law. They are targeting 13 states for approval this year and 6 of them are GOP controlled. That would meet the need 34 to force a convention call.

(from Arn Pearson at the Center for Media and Democracy, a watchdog group based in Madison, Wisc., is closely tracking the movement. He describes the campaign for a constitutional convention as "a very live threat." "If between the groups they get to 34 states," he says, "there is really nothing preventing them from aggregating those calls even if they're not identical, and pushing for a convention."

In the end, whatever a convention might call for would need ratified by 38 states, which would be a last line of defense.

To some this might sound alarmist, but our democracy is in danger, our republic is failing, we are nearing an oligarchy, and now the very heart of all that make us what we are is in danger.