You should worry about constitutional convention

At this moment in our nation’s history, we are deeply divided. There is little agreement between our two major political parties. Eroding confidence in our governing institutions includes flagging respect for Congress, the presidency and the courts.

The U.S. Constitution alone remains sacrosanct in public opinion. It is a unifying document to which all lay claim. It is America’s civic religion because it epitomizes what is fair and just. Given the current climate of division, we need the one remaining emblem of our national unity more than ever.

Nevertheless, Idaho’s lawmakers are now considering legislation that would call for a Constitutional convention, which would allow for wholesale revision of the document at the center of our representational democracy. Some lawmakers are especially motivated by the prospect of addressing multiple issues in a convention.

The special interest groups pressing Idaho legislators for a state-called constitutional convention claim that 28 states have already signed on. If six more join, they say, the Constitution will be opened for revision. Idaho has been targeted as a vulnerable state that could be convinced to join the push to revise the Constitution.

But Idaho’s lawmakers are flirting with enormous risks posed by a constitutional convention.

We have, of course, amended the Constitution 27 times. In every instance, however, we used the first approach outlined in Article V for amending the Constitution. A long historical precedent beginning in 1791 guides the amendment process under this approach.

But no rule or law limits the scope of a state-called constitutional convention. Without established legal procedures, the entire document would be laid bare for wholesale revision.

Article V itself sheds no light on the most basic procedures for such a convention. How many delegates does each state get at the convention? Is it one state one vote, or do states with larger populations, like California, get a larger share of the votes? The Supreme Court has made at least one thing clear — it will not intervene in the process or the result of a Constitutional convention. The game has neither rules nor referees.

Even a convention called for the putative purpose of drafting a balanced budget amendment could easily spread into rewriting the Second Amendment. Worse still, it could devolve into horse-trading, like striking the Second Amendment in order to gain enough votes to pass a balanced budget amendment. Even if the Idaho Legislature mandates that its delegates confine both their debate and their vote to a singular topic, neither courts nor Congress has the power to enforce such a mandate, making it more illusory than binding.

The prospect of a runaway convention is more than just an academic concern. The only state-called constitutional convention in our history began as an effort to amend our governing document, but ended by scrapping it altogether. Idaho’s Legislature is toying now with the possibility of reaching similar results. For our country’s sake, I hope the Idaho Legislature resists the special-interest groups that are pushing for a constitutional convention and instead reaffirms the integrity of the document at the heart of our divided nation.

•••

McKay Cunningham is a Constitutional Law Professor at Concordia University School of Law in Boise.