Skip to Content

Support MinnPost

Is the Constitution preparing to come back from exile?

In case you never noticed, Article V of the U.S. Constitution provides two ways that the Constitution can be amended. One is hard and rare in which an amendment is passed by two-third of both houses of Congress and then ratified by three-fourths of the states.

The second one is beyond hard and rare. It has never occurred. The Framers were concerned about trusting Congress entirely with the amendment process, so they created a work-around. If the legislatures of two-thirds of the states were to call for a new constitutional convention, such a convention would called (Congress has nothing to say about it) and would be empowered to propose amendments. The amendments would still have to be ratified by three-fourths of the states.

OK, it's a long-shot that this process could work. But certain elements — elements of the organized right, especially the group that considers itself the guardians of liberty — would like to be the restorers of lost liberty, to see if they can make the second process described in Article V work.

Slate has a full story on the closed meeting, recently held at Mount Vernon (George Washington's estate in Virginia) to get this thing going. (When I say Slate has a story, I should clarify that they weren't allowed into the meeting, but wrote about it without attending.)

The meeting was attended by many state legislators, many of whom were in D.C. for another meeting organized by the American Legislative Exchange Council (ALEC), which may mean the group was slightly titled to the right.

Slate wasn't crystal clear on who was in charge, but there's something called "Convention of States," which is a project of Tea Party Patriots co-founder Mark Meckler, who also has an organization called "Citizens for Self-Government."

Here's an excerpt from the Slate piece that will put you more deeply into the picture:

Meckler and his colleagues would make it easy. In the book, CFSG listed a few "examples of amendment topics" that were stalled in Washington but doable at a convention: a balanced budget amendment, term limits for the Supreme Court, "a prohibition of using international treaties and law to govern the domestic law of the United States," and a "limit" on taxes. The convention would be centered not on any one of these ideas, but "for the purpose of limiting the power and jurisdiction of the federal government." The chance of success? "Almost certain."

If that wasn’t enough, the conservative legislators who stopped by this panel heard an endorsement from a real politician. Wisconsin Sen. Ron Johnson, another member of the 2010 Tea Party class, suggested Article V as a way of rolling back the government, because Washington never would. "They are giving away candy, and it is tasty stuff," he said. "We've got the drill and the Novocaine to fix the cavity."

Personally, by the way, I would vote for an amendment limiting Supreme Court justices to a single 18-year term. The others on that list, not so much. I'm a bit skeptical of the "almost certain" chance of success. As I mentioned above, any amendment proposed by such a convention would still be subject to ratification by three-fourths of the states. That means that 13 of the 99 houses of the 50 state legislatures could kill any proposal (assuming the 13 houses were from 13 different states).

By the way, my use in the headline to the "Constitution in exile," refers to a concept on the right that the "real" Constitution as the Framers intended it has been exiled by, for example, the left's constant effort to expands the size and scope of the federal government.

Hat tip: Ray Schoch.

Get MinnPost's top stories in your inbox

Related Tags:

About the Author:

Comments (21)

I Find It Odd

That they want term limits for SCOTUS. Conservatives have done pretty well there of late. John Paul Stevens started out as centrist but ended as a lefty since the court lurched so far to the right.

Maybe they are concerned about long odds in the Electoral College?

Article V

has to be proof that the original framers never imagined this Constitution lasting more than 20-25 years. I'm not surprised there are some daft people, of course on the right, who think they can use this provision to cram down on the rest of us what the logjammers in Congress cannot. But let them be so occupied in their vain and futile efforts; it will keep them from meddling into something else they know nothing about.

How could the "original

How could the "original originalists" want to modify the original?

The hope is

that with massive funding available, State legislatures can be more effectively lobbied, gerrymandered and otherwise purchased than can the House and Senate.
Means that the battle must be fought on 99 fronts; not two.

Let them Rock and Roll

If it works I suspect there will be many other referendums that come up like gun control, Pot legalization, immigration reform, Amendments against dumb congressional & supreme court decisions, stupid "Social laws on abortion and anti gay legislation"
I personally welcome teh opening of Pandora's box because inside may be some sense of rationale thinking and pragmatic attitude,
Come on Right Wing wing nuts "Make my day" "PLEASE"

Indeed !! Here's another couple that could come up...

...as they seem to be at the root of extremely intractable problems:

1. Forbid a corporation to be construed as a "person" under federal or state law.

2. Clarify that money cannot be construed as speech under any law.

Constitution in Exile

It should be noted that the phrase 'Constitution in exile' is actually *not* a concept from on the right. It's a label from the left, popularized by Cass Sunstein. You can read more about the history of it by following the links here: http://www.volokh.com/2012/05/20/the-irrelevant-myth-of-the-constitution...

First of all

While the phrase 'Constitution in exile' may have been popularized by Sunstein, he is not responsible for the -concept- that it describes.
And second, the article you link to contains a lot of statements by Barnett about what he thinks Sunstein is saying, supported by very few direct quotes from Sunstein himself. Do have have a source for an actual statement by Sunstein?

This Might Help

This bit right here is a pretty good summary and includes a response from Sunstein. http://www.volokh.com/archives/archive_2005_01_02-2005_01_08.shtml#11047...

For Sunstein himself, in his own words, here is an early example: http://www.washingtonmonthly.com/features/2004/0409.sunstein.html

Thanks!

...

Article V Convention

I'm all for such a convention. There are plenty of provisions that I think would find plenty of support if taken away from Washington DC. A ban on the draft, for instance. Some well defined privacy protections would be welcome too. Term limits make a ton of sense. And those are just some non/bi-partisan ideas off the top of my head.
How about an amendment that automatically seats executive nominees 180 days after formal proposal, unless voted against? That would seem to fix a lot of the broken process that we currently have. I can't see Congress voting for such a thing because each party thinks they have an advantage in holding the whip hand. Only an outside force could do it.

Your goals are admirable.

The problem is whether these outcomes would actually result from constitutional conventions. It's just as likely that we'd get amendments explicitly granting all citizens unlimited ownership of firearms, and granting corporations all of the rights and privileges (if not responsibilities) of individual citizens.
Pandora's box indeed!
A lot of evil and a little hope.

Barriers

From past conversations, I'm pretty sure that our amendment wish lists would be very different but I wouldn't worry too much. With such high barriers to actually passing an amendment, I doubt anything hotly contested would pass. While I'm perfectly fine with explicitly granting universal rights of gun ownership, I doubt you could get representatives from 38 states to agree.

Barriers

If the barriers to passing amendments are so high that anything that is hotly contested is unlikely to pass, what's the point of a convention?

Of the one's you mentioned

the only one I might take exception to is banning the draft.
It has been said that some of our recent military adventures might have been given more thought if the sons and daughters of ALL Americans were at risk of serving.

That's nonsense

My experience in the military (which was post-draft) was that it's a cross-section of America. Rich kids, poor kids and everyone in between. From every state in the union. Well, except I never did meet anyone from Wyoming.

In fact, I probably knew more kids who were from rich families than from poor families. In some well-to-do families, it's family tradition to serve in the officer corp or in special forces. As the Sioux say, "My people were warriors. It was my turn." The British royal family is the same way. In my outfit, we actually had a Corvette club. I walked away from a full-ride at the university to enlist.

The military draft should be relegated to the trash heap of history. No free society should ever have to use conscripts to fight its wars. There will always be a sufficient number of patriots willing to die for this country, assuming it remains free.

That may be -your- recollection

And the submarine navy was an elite corps not representative of the armed forces as a whole.
The numbers show a different picture; a significant over-representation of minorities and poor. The diferences aren't huge, but there is a there there.
see http://www.statisticbrain.com/demographics-of-active-duty-u-s-military/

Some more data from: www.militaryonesource.mil/12038/MOS/Reports/2010_Demographics_Report.pdf

Note the changes over time!

"Executive Summary
iv
2010 Demographics Report
Race/Ethnicity.
Less than one-third (30.0%) or 425,130 of Active Duty members identify
themselves as a minority (i.e., Black or Afric
an American, Asian, American Indian or Alaska
Native, Native Hawaiian or other Pacific Islander, multi-racial, or other/unknown). The
percentage of Active Duty members who identify themselves as a minority is greater in 2010
than it was in 1995 (from 10.5% of officers and 28.2% of enlisted in 1995, to 22.7% of officers
and 31.4% of enlisted members in 2010). The overall ratio of minority officers (53,287) to
minority enlisted personnel (371,843) is one minority officer for every 7.0 minority enlisted
personnel. Beginning in 2009, to conform to the latest Office of Management and Budget (OMB)
directives, Hispanic is no longer considered a minority race designation and is analyzed
separately as an ethnicity. Overall, 10.8 percent of the DoD Active Duty force is of Hispanic
ethnicity.
Geographic Location.
While the Active Duty population is located throughout the world, the
three primary areas in which Active Duty members are assigned are the United States and its
territories (86.4%), East Asia (7.0%), and Europe (5.7%). The ten states with the highest Active
Duty military populations are California (159,380), Virginia (127,981), Texas (123,879), North
Carolina (116,114), Georgia (74,235), Washington (62,409), Florida (57,558), Hawaii (47,531),
Kentucky (45,568), and Colorado (36,998). These 10 states comprise 69.9 percent of the
personnel stationed in the United States.
Age.
Almost one quarter (24.6%) of Active Duty officers are 41 years of age or older, with the
next largest age group being 26 to 30 year-olds (22.4%), followed by 31 to 35 year-olds
(19.9%), 36 to 40 year-olds (19.7%), and those 25 years old or younger (13.4%). More than
one half (50.3%) of Active Duty enlisted personnel are 25 years old or younger, with the next
largest age group being 26 to 30 year-olds (22.1%), followed by 31 to 35 year-olds (12.7%), 36
to 40 year-olds (9.3%) and those 41 years old or
older (5.6%). Overall, the average age of the
Active Duty force is 28.5. The average age for Active Duty officers is 34.7, and the average age
for enlisted personnel is 27.3.
Education Level.
The majority (82.8%) of officers have a Bachelor’s or higher degree. Few
(4.9%) enlisted members have a Bachelor’s or higher degree, while most (93.6%) have a high
school diploma and/or some college experience. In the past fifteen years, the percentage of
Active Duty members who have a Bachelor’s and/or an advanced degree has decreased for
officers (from 89.6% in 1995, to 82.8% in 2010) but has increased for enlisted personnel (from
3.4% in 1995 to 4.9% in 2010). "

You've fingered the problem with all-volunteer services.

It generates a stream of people, "a sufficient number", as you say, who will follow all directives from up the command chain, no matter how deluded, no matter how much damage it does to our country, in service of "my country, right or wrong".

The Iraq war is a fine example. This illusory foreign adventure, a falsehood at its foundation, has harmed the fundamental interests of the United States, yet the soldiers kept going and kept going. They'd keep going today if the Iraqis hadn't kicked us out.

The all-volunteer army does an end-run around the problem of civilian protest in the political system - by making only those volunteers bear the burden. So our leaders have more freedom of action to engage American lives and treasure in pursuit of their delusions.

Basic Freedom

Hold on, Steve and Paul. Drafting someone to serve in the military against their will is an enormous breach of their liberty. You're asking someone to give up choosing where they live and what their actions will be. Most importantly, you're putting them in a position where they may be killed. And all of this in hopes that these conscripts won't actually fight as well as volunteers? You'd make this huge infringement of basic freedoms to prove some nebulous point?
Over the years, when Charlie Rangel has proposed bringing back the national draft, I has assumed that it wasn't meant as a genuine proposal but as some convoluted attempt to shame conservatives. These comments make me wonder about that. Is the freedom of your fellow citizens that cheap?

I've seen this same argument used

against paying taxes
(and any other participation in society that isn't to the individual's advantage).
You're starting to sound like Dennis.
Of course, we could substitute good old fashioned capitalism for the draft; keep increasing military wages until even the well to do start signing up.

Your "nebulous point" MISSES the point.

Charlie Rangel's proposal was not as trivial as your interpretation of it. You conservatives are too sensitive, seeing hobgoblins where there are only clouds and shadows. No need to feel ashamed - no one's shaming you !!

His proposal insists that the whole society take responsibility for these numerous wars and own the personal price.

You may have forgotten that the only thing that ended the Vietnam war was the cutoff of funding by the Congress - a result of the political demand of the people. Such a thing is hardly possible today, as so many Americans think the latest war is not really their problem.