Friday, July 19, 2024

OPINION: Don’t be conned by the Con-Con

We are of different parties and often disagree, but are allied in our fierce devotion to America’s Constitution. It is now under serious threat from well-meaning people who seek a Constitutional Convention.

There are two ways to alter the U.S. Constitution. The first — and only way our Constitution has ever been amended in its 237-year history — is for Congress to propose an amendment and pass it by a two-thirds vote. Then three-fourths of the states must ratify. Everybody sees the amendment language, and knows exactly what they’re voting on. 

But there’s another untested way to alter the Constitution. A Constitutional Convention, or “Con-Con,” can be requested by two-thirds of the state legislatures. There has only been one such Convention — when the Constitution was written in 1787. Unlike the amendment approach, a Con-Con opens up the whole Constitution to be re-written as the delegates decide. Alterations could not be reliably limited to a particular, known proposal; delegates could concoct changes on the fly to anything or everything. There are no set rules determining how the delegates holding such staggering power would be chosen. We would be counting on a dysfunctional Congress to set these rules. 

This session, three resolutions are pending in the Idaho Senate calling for a Con-Con: SCR112, SCR114 and SCR115. Advocates will assure you that their sole purpose is to pass a balanced budget amendment or some other benign-sounding tweak. But there is no basis to believe that the agenda can be safely contained. Once a Convention is called, everything is on the chopping block. The Constitutional protection of our rights — free speech, gun rights, a jury of our peers — all could be restricted or even eliminated by unelected delegates. Even the ratification requirement by three-quarters of the states could be removed. 

History rebuts the idea that in a Con-Con, delegates’ powers could be restricted to a single item. The original 1787 Constitutional Convention was called solely to ratify the Articles of Confederation, but the delegates ignored that limitation and drafted our current Constitution, including new ratification rules. Top legal scholars across the ideological spectrum, from Justice Scalia to Harvard’s Professor Tribe, have agreed that subject limitations could not be enforced once a Constitutional Convention begins. 

If you think this sounds far-fetched, think again. Twenty-seven states have already called for a Con-Con, and once that number hits 34, Congress must convene it. Idaho is one of only seven states standing in the way of a potential gutting of our founding document, and proponents are working overtime to hit the tipping point. Some powerful Idaho legislators have this as a top priority for this session. 

The public must loudly tell their legislators not to risk a runaway convention that could gut our precious Constitution. We agree that federal debt should be reined in and government could be improved across the board. But there are many ways to do so without taking unconscionable risks with the document that is the foundation of America’s freedom and prosperity. This is not a partisan issue — it’s a matter that ought to concern all Americans. 

Our Founding Fathers created the Con-Con option to use in case the American experiment proved to be a failure and needed a complete overhaul. That is not the case. Our nation is an unprecedented success. America has been a beacon of freedom for centuries and remains the wealthiest, most powerful nation on Earth. We cannot stand by and watch the uniquely inspired document that enabled this success placed at risk. Let’s solve our problems using the many political tools we already have, and not jeopardize our Constitution.

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Ilana Rubel and Judy Boyle are Idaho state representatives.

    Rep. Judy Boyle