When it comes to an Article V convention of states to propose amendments to the Constitution, there is no shortage of opinions. Mark Levin’s The Liberty Amendments and the existence of serious and well organized efforts to achieve an Article V convention such as Compact For America and Convention of States have induced public debate for many months. More recently, Texas Governor Greg Abbott came out with his own plan for an Article V convention.
Some who might otherwise sympathize with the government limiting objectives of these efforts criticize the idea due to concerns over a ‘runaway convention’. They argue that there is no effective way to limit the convention to specific topics and they fear that a convention might propose radical and dangerous amendments. Such arguments ignore the Compact For America approach which leverages consensus among the paritipating states to build in safeguards at every stage in order to prevent the convention from so much as discussing an amendment outside of the specific text of a pre-drafted amendment. More obviously, they ignore the requirement that three fourths of the states must ratify any amendment such a convention might propose before it could take legal effect. The likelihood that 38 states would ratify a radical and dangerous amendment is remote in the extreme.
But the most dangerous perspective often advanced by these Article V naysayers is found in their explanation of what should be done to reinstitute constitutionally limited government. A recent article by Mark Pulliam, a contributing editor of Law and Liberty, typifies this fatalistic thinking with respect to the viability of the Constitution as the definitive statement on the limits of government power. After making the usual arguments regarding the supposed dangers of a ‘runaway convention’, Mr. Pullium offers the following as the proper way to re-establish constitutional fidelity:
(T)he ultimate solution to our current dilemma lies in the election of a conservative President and a principled U.S. Senate, who would appoint and confirm a majority of sound, committed originalists to the U.S. Supreme Court. We don’t need to amend the Constitution. We need to enforce it. Our nation has been led astray by feckless legislators and progressive jurists who for generations have failed to follow the Constitution that was ratified in 1789. It is time for voters to restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law. (emphasis added)
Unfortunately, this attitude is not uncommon among those who desire a return to constitutional fidelity. It’s danger exists in the fact that it necessarily implies that the Constitution is not only already a dead letter as the supreme word on the limits of the federal government’s authority, but that we should not attempt to rejuvenate it – rather, we should rely on the electorate as the ultimate check on federal power.
The Constitution was drafted and ratified as the definitive articulation of a sovereign people’s creation of, and delegation of power to, their new government. The very specific point of the Constitution was to preserve individual rights and limit the federal government so that it could not interfere with those rights or with the sovereignty of the states. The founders believed that majoritariansim was to be avoided because individual rights would be non-existent if exposed to the whims of electoral politics – rights subject to the will of the majority are reduced to mere privileges. As a result, the founders made the expansion of the government’s powers “off limits” to normal electoral politics. No mere majority could infringe on the unalienable rights of others by voting the government more power. The idea was to limit the government’s powers subject only to expansion, or reduction, by amendment pursuant to Article V.
The great and terrible victory of the progressive movement was to circumvent Article V and achieve vastly expanded federal power by judicial fiat. ‘Living constitution’ theory permitted judges to amend the Constitution from its original meaning by reinterpreting it so as to expand federal power based on society’s perceived ‘needs’ as determined by judges and the politicians who appointed them. This extra-legal revision of the Constitution by ‘interpretation’ fundamentally transformed the nature of the Constitution from a permanent charter of individual liberty chiseled in granite to a hunk of soft clay subject to easy manipulation. As federal power has expanded, our ability to effectively limit it has been shifting from the Constitution to the ballot box. Where we once could simply appeal to the Constitution itself to negate any attempted expansion of federal power, we’re now too often forced to the ballot box where, if sufficient numbers exist, we might induce the government not to exercise power (as opposed to establishing that the power does not exist at all). Accordingly, we now often find ourselves in a situation the Constitution was specifically designed to avoid – appealing to the sympathies of voters as our last line of defense in restraining governmental power.
Thus, the notion that we could “restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law” is a fallacy. Just as an addict cannot be rehabilitated by overdosing, the Constitution cannot be “restored” at the ballot box. Subjecting the Constitution’s limits on government power to the ballot box is the problem; it cannot be the answer. We must return the Constitution to its status as the definitive statement on the limits of government power. When the government is once again effectively constrained by the Constitution without reliance on electoral politics, we will again have our real Constitution and the constitutional republic envisioned by our founders. We should defy all efforts to continue our metamorphosis into a majoritarian republic where the people might once in a while (and temporarily) be convinced to return to first principles. ‘Restoring the Constitution at the ballot box’ is a contradiction in terms. Pretending otherwise serves only to invite further erosion in public respect for the Constitution as the definitive word on federal authority and to usher in the representative majoritarianism which naturally follows.