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Combating Chicanery About the Constitution
  • A Contemporaneous Consensus?
  • A Limited or Runaway Convention?
  • The Bait-and-Switch Act
  • Contradictions and Realities
  • 32 States Passed Con Con/BBA Resolutions
  • Gore Vidal's Prediction

  • VOL. 21, NO. 2P.O. BOX 618, ALTON, ILLINOIS 62002SEPTEMBER 1987

    Combating Chicanery About the Constitution

    The following is an address given be Phyllis Schlafly on August 9, 1987 at the American Bar Association's Bicentennial Showcase Program sponsored by the Section on Individual Rights and Responsibilities during the ABA Annual Convention in San Francisco.

    Russian Roulette is a deadly game of risk. You put one bullet in a revolver, leaving five empty clambers, spin it, aim it at your head, and fire. The odds are very favorable; you have five chances out of six of living to laugh at the fun of it all, and only one chance out of six of killing yourself.

    Despite the good odds, society labels it murder if you play such a risky game with life. Many of us feel it would be just as irrational to play such a risky game with the United States Constitution — our most precious document and the fountainhead of our unparalleled American freedom, independence, and prosperity. Our Constitution is a statement of principle and practicality that has lasted 200 years, longer than any constitution in the history of the world.

    Article V of the U.S. Constitution requires us to call a new Constitutional Convention if two-thirds (or 34) of the states request it. The language of Article V is mandatory: it says that Congress "shall call a Convention for proposing Amendments" whenever requests are received from two-thirds of the states. Note that the word "amendments" is used in the plural. These are the only instructions we have about a Constitutional Convention. There are no other rules or guidelines.

    We don't know how a Constitutional Convention would be apportioned, or how the delegates would be elected. We don't know what rules the Convention would operate under. We don't know whether amendments could be proposed by a simple majority or would require a super majority. We don't know if the agenda could be limited or would be wide open to any proposal.

    We can anticipate that the Convention would be the target of legal challenges at every step of the way. We don't know if the Supreme Court would undertake to resolve these controversies, and if so how, or if the Supreme Court would pass the buck and label them "political questions."

    The whole process would be a prescription for constitutional chaos, controversy and confrontation, along a road our nation has never traveled before, without any map or guidelines, and with no clear vision of our destination.

    The Convention that produced our 200-year-old Constitution had the advantage of being able to deliberate for four months in secret, without prying reporters, without media coverage, and without even any leaks. Just about the only thing that we can predict with certainty about a new Constitutional Convention is that it would not be secret. Meddling media coverage would exacerbate every controversy.

    How will the delegates be elected, or selected? The most frequently talked about method is to allow the same number of representatives as those who serve in Congress, with one delegate from each Congressional district plus two delegates at large from each state. That method has several major defects. Since there would be no Senate (no one his suggested that a Constitutional Convention be a bicameral body), the small-population states would become politically irrelevant. The ten big Western states, excluding California, would amount to only nine percent of the Convention.

    A recent article in the Wall Street Journal recommended that delegates be appointed by the nation's 50 Governors. That's just one example of the undemocratic procedures currently concocted by those who want to plunge us into a Constitutional Convention.

    Some assure us that Congress will pass a Constitutional Convention Implementation Act to resolve these problems. Such a bill has been floundering in Congress for the last 20 years, but has never passed because there is no Congressional consensus on essential decisions pertaining to the election and functioning of a Constitutional Convention.


    A Contemporaneous Consensus? 
    Are the pending applications for a Constitutional Convention by 32 state legislatures valid? Some of these resolutions purport to limit the action of the Constitutional Convention to a particular subject or to a particular time frame. Are those restrictions valid? What is the length of time during which 34 resolutions can be passed by state legislatures in order to trigger a particular Convention?

    The 1921 case of Dillon v. Gloss tells us that changes in the U.S. Constitution should be the result of a contemporaneous consensus." This is why most constitutional amendments proposed in the 20th century have had a time limit of seven years.

    The current series of resolutions calling for a Constitutional Convention are not within any time frame that could be called "contemporaneous." In the last seven years, only two states have passed a call for a Constitutional Convention for a Balanced Budget Amendment: Alaska in 1982 and Missouri in 1983.

    On the other hand, in the last seven years at least five states have voted down a call for a Constitutional Convention after spirited debate: Michigan, Connecticut, Maine, Kentucky, and Montana. Several other states have defeated a Convention resolution by not letting it come to a vote. It is obvious that there is no general public support for a Constitutional Convention.

    In the absence of any public demand, the advocates of a Constitutional Convention for a Balanced Budget Amendment have resorted to a remarkable piece of legislative chicanery in order to compel the calling of a Constitutional Convention anyway. The proposed Constitutional Convention Implementation Bill in the current Congress prescribes a time limit of seven years during which state resolutions calling for a particular Constitutional Convention can be validly passed, BUT would give the current series of Constitutional Convention resolutions the special privilege of 16 years.

    This would "grandfather in" all the old, stale calls for a Constitutional Convention for a Balanced Budget Amendment going back to the first ones in 1975, and would prop them up on an artificial life-support system until 1991, while an attempt is made to round up two additional states.

    This is the same type of playing games with the Constitution that we suffered with the time extension of three years and three months voted by Congress for the Equal Rights Amendment. It is a subterfuge to avoid complying with the need for a "contemporaneous consensus." It is an attempt to lock in state resolutions which were passed ten years earlier, while exerting enormous political and financial pressure on two or three targeted states in order to achieve the necessary number of resolutions.

    The same people who are trying to initiate a Constitutional Convention by tricking us about the rules for calling one, are now trying to assure us that a Constitutional Convention would be harmless because it would be limited to consideration of a Balanced Budget Amendment. Their assurances do not inspire confidence.


    A Limited or Runaway Convention? 
    Can a Constitutional Convention be limited? Or would it be wide open and able to consider any change in the Constitution? You get a different answer to this question depending on which lawyer you ask. Some say yes, some say no, but no one can guarantee that the Convention will be limited to a single issue.

    Retired Chief Justice Warren Burger said this year in Detroit, "There is no way to put a muzzle on a Constitutional Convention." The Stanford Law School Professor whose case-book is used in the majority of U.S. law schools, Gerald Gunther, said that, even if Congress tried to limit the Convention to one subject, the delegates could decide for themselves that the Convention "is entitled to set its own agenda."

    The advocates of a Constitutional Convention try to deny that a runaway Convention would happen — but they can not deny the risk of a runaway Convention. I don't believe our great constitution should be exposed to that risk.

    The political problems involved in trying to limit a Constitutional Convention to a single issue are even greater than the legal problems. The advocates of a Constitutional Convention try to tell us that delegates would run on a single-issue platform, would have a moral obligation to stay on that topic, and that voters would demand that the Constitutional Convention be limited to the subject for which it was called.

    Those who pursue that line of argument must have no experience with grassroots politics and how people are elected to office. In the real world, special-interest groups would organize to elect their friends. Pro-life groups would vote for candidates on the basis of their single-issue, abortion; no one could deny them that right. The National Education Association would work for candidates who support the NEA'S big spending agenda.

    Then, when the Constitutional Convention is convened, the factions would bargain with each other: "You support our amendments and our rules, and we'll support your's." Practically anything can be made a fiscal issue; and many of the Balanced Budget Amendment advocates admit that they really prefer the Line Item Veto Amendment anyway. Of course, a Human Life Amendment would become an immediate bone of contention! Don't forget that 19 states have passed resolutions calling for a Constitutional Convention to consider a pro-life amendment.

    Groups on both the right and the left are proposing major constitutional changes. Some want to prohibit abortions or federal deficits. Some want to change our structure of government by eliminating our Separation of Powers and turning us into a European parliamentary style of government. It is incredible that these groups would pass up the marvelous, once-in-a-lifetime opportunity to use the Constitutional Convention to achieve their long-sought goals. Groups that are advocating structural change in our Constitution have ridiculed the literature of the Balanced Budget Amendment groups for asserting that a Constitutional Convention can be limited to only one subject.

    Some of these groups are openly saying that "the best way to honor the framers of the Constitution during this Bicentennial era is to follow their example." And what is that example? The Constitutional Convention of 1787 was called for the exclusive purpose of amending the Articles of Confederation. Once the Founding Fathers assembled in Philadelphia, they threw out the Articles of Confederation and wrote an entirely new Constitution, and even changed the ratification procedure so they could it adopted more easily. The 1787 Convention is the only precedent we have for a national Constitutional Convention.

    If a constitutional Convention can change our structure of government as defined in Articles I, II, and III, it can also change the Article V requirement that three-fourths of the states are needed to ratify any changes. The Convention of 1787 reduced the number of states required to ratify a change from 100% of the states to 75%, and a Convention in the 1980s could "follow their example" and reduce it further, to 66%, or 60%, or even 51%.

    Any proposal for constitutional change should be addressed on its own merits, NOT made hostage to contention and compromise at a Convention whose delegates bear no accountability to the people because they never have to run for re-election. Convention delegates are even exempt from the Article VI provision which requires Senators, Congressmen, State Legislators, and all executive and judicial officers of the United States and all 50 states to take an oath to support and defend our present Constitution.

    The Bait-and-Switch Act 
    If a Constitutional Convention is such a bad and risky idea how were 32 state legislatures conned into requesting one? The answer is that they were the victims of a classic case of bait and switch. They were baited into support of the Balanced Budget Amendment, and then slick salesmen substituted the merchandise and sold them the Constitutional Convention.

    Most or sometimes all of the debate and political pressure involved support for a Balanced Budget Amendment exclusively, while a Constitutional Convention was given the silent treatment. In some states, large newspaper advertisements and telephone banks soliciting a "yes" vote referred only to the Balanced Budget Amendment and never mentioned the call for a Constitutional Convention.

    About half the states on record as calling for a Constitutional Convention didn't even hold any hearings. But, as any lawyer will tell you, you are obligated by the fine print in a contract even if you fail to read it.

    It is curious that a Constitutional Convention is proposed as the route to a Balanced Budget Amendment. It's like your telling me that, when you leave San Francisco, you are headed for Los Angeles, but somehow your plane ticket reads through New York. This would convince me that you are in no hurry to get to Los Angeles, but that you expect to enjoy fun and games along the way.

    The last time the proposed Balanced Budget Amendment came up in the U.S. Senate, it failed by only one vote. The last time it came up in the House, it failed by only 46 votes. A switch of a handful of votes would pass the Balanced Budget Amendment and send it out to the states where it would probably enjoy speedy ratification.

    So why doesn't this happen? Because the political and financial energies to accomplish this goal have been diverted into a strategy of getting state legislators (instead of Congressmen) to vote rah, rah, rah for a federal balanced budget — a vote that appears to put them on the side of the angels at no cost. The Balanced Budget Amendment activists raise money from those who support that cause, but spend it to run around the country and win easy votes in state legislatures.

    There is no evidence that a Constitutional Convention would vote out a Balanced Budget Amendment anyway. A more likely scenario is that it would be bogged down in dispute and division. The results could very well be the opposite of what the Balanced Budget Amendment advocates hope.

    Former secretary of Defense Melvin Laird pointed this out when he wrote in the Washington Post, "The mere act of convening a Constitutional Convention would send tremors through all those economies that depend on the dollar; would undermine our neighbors' confidence in our constitutional integrity; and would weaken not only our economic stability but the stability of the free world."


    Contradictions and Realities 
    There is a curious ambivalence among those leading the effort to get state legislatures to pass these Constitutional Convention resolutions. Some claim that they want a Convention to be convened, while others claim that they are merely trying to force Congress to vote out a Balanced Budget Amendment in the traditional amendment procedure. They claim that, as soon as 34 states pass Con Con resolutions, Congress will voluntarily vote out a Balanced Budget Amendment instead. It's hard to take this seriously when the language of Article V is mandatory — Congress "shall" call a Convention if 34 states request it.

    Some of the advocates assert that Congress will be forced to vote out a Balanced Budget Amendment if 33 states pass Constitutional Convention resolutions. They cite the way Congress voted out the 17th Amendment in 1913, ordering the direct election of Senators, after all except one of the required number of states had passed Constitutional Convention resolutions. It's hard to take this argument seriously when they deliberately ignore the more recent example that, in the 1960s, 33 states passed resolutions for a Constitutional Convention to overturn the Supreme Court's "one man one vote" decision, but Congress simply thumbed its nose at the states, and nothing happened.

    More important, it is difficult to understand those who, out of one side of their mouths, urge state legislators to vote FOR a Constitutional Convention while, out of the other side of their mouths, they assure us that a Convention will never happen, virtually conceding that this route is a recipe for confusion.

    Such double talk about the Constitution is unworthy of the subject. Chief Justice John Marshall reminded us that we must "never forget that it is a Constitution we are expounding." Likewise, we should never forget that it is a Constitution we are talking about amending. It deserves more respect than to be treated, to use a current metaphor, like "a potted plant."

    More and more, the advocates of a Constitutional Convention for a Balanced Budget Amendment are coming out of the closet and admitting that they really want a Constitutional Convention to take place. Many of these people are my friends, and I respect their sincerity. However, I don't trust them to rewrite the Constitution any more than my political opponents.

    James Madison, the father of our Constitution, said it best when he wrote: "Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a second." Madison said that in an era when a second convention could have been chaired again by George Washington.

    The miracle of our great U.S. Constitution is that it has lasted 200 years, accommodating our great geographic and economic expansion, while preserving individual liberties. I don't see any James Madisons, George Washingtons, Ben Franklins, or Alexander Hamiltons around today who could do as good a job as was done in 1787, and I'm not willing to risk making our Constitution the political plaything of those who think they are today's Madisons, Washingtons, Franklins, or Hamiltons.


    32 States Passed Con Con/BBA Resolutions 
    1975 Alabama (9/10)1979 Florida (2/22)
    Louisiana (7/23) Idaho (2/28)
    Mississippi (2/25) Indiana (5/1)
    Iowa (6/18)
    1976Delaware (2/25) Louisiana (7/18)
    Georgia (2/6) Maryland (6/5)
    South Carolina (2/23)Nebraska (3/7)
    Virginia (3/25)Nevada (2/28)
    New Hampshire (5/1)
    1977Maryland (1/28) New Mexico (2/26)
    Tennessee (6/10) North Carolina (2/6)
    North Dakota (5/3)
    1978Colorado (4/5)Oregon (3/15)
    Kansas (5/17) Pennsylvania (3/12)
    Louisiana (7/14) South Dakota (2/27)
    Oklahoma (5/3) Texas (1/15)
    South Carolina (5/22) Utah (3/7)
    Tennessee (4/25)
    Wyoming (5/17)
    1979Alabama (3/13) 1982Alaska (2/3)
    Arizona (4/10)
    Arkansas (3/5)1983 Missouri (7/11)

    Only 2 of the 32 States Passed Con Con/BBA Resolutions within the Last 7 Years.

    From 1975 to 1987, a total of 32 states passed Con Con/BBA resolutions. The list appears to be more than 32 because Alabama, Maryland, South Carolina and Tennessee passed the resolution twice and Louisiana three times.

    18 States Never Passed Con Con/BBA Resolutions
    CaliforniaMontana
    ConnecticutNew Jersey
    HawaiiNew York
    IllinoisOhio
    KentuckyRhode Island
    MaineVermont
    MassachusettsWashington
    MichiganWest Virginia
    MinnesotaWisconsin


    How can we believe that a Constitutional Convention will be limited to a Balanced Budget Amendment when the whole procedure of calling one is based on tricking us about the rules?

    The Constitutional Convention Implementation Bill, originally written by Senator Sam J. Ervin in the 1960s (which has floundered in Congress since then but has never passed), called for a time limit of 7 years both for the ratification of constitutional amendments in the usual way and for state resolutions calling for a Constitutional Convention. This is because the Constitution may be changed only if there is a "contemporaneous consensus" in support of the change.

    But the 1987-88 version of the Implementation Bill in the U.S. Senate provides that the current series of state resolutions requesting a Constitutional Convention would have the special privilege of a time limit of 16 years (described as 14 years plus 2 years). This one-time exception to the general rule would "grandfather in" all the old state calls for a Constitutional Convention. Here is the text from this Implementation Bill now pending in the Senate:

    "Effective Period of Application

    Sec. 5. (a) An application submitted to the Congress by a State, unless sooner withdrawn by the State legislature, shall remain effective for the lesser of the period specified in such application by the State legislature or for a period of seven calendar years after the date it is received by the Congress, Provided however, That those applications which have not been before the Congress for more than fourteen years on the effective date of this Act shall be effective for a period of not less than two years."

    This is the same type of chicanery about procedure — playing games with the Constitution — that we endured with the Time Extension of 3 years and 3 months voted by Congress for the Equal Rights Amendment. That Extension enabled the ERA advocates to exert enormous political and financial pressure on four states in 1982 while "counting" the 23 states that passed ERA in 1972 (10 years earlier), and pretending that 5 rescissions did not exist.


    Gore Vidal's Prediction 
    Gore Vidal, a leftwing writer of considerable acclaim, let the cat out of the bag in a recent speech at Oregon State University which was published in the San Francisco Chronicle. He explained the liberals' plan to take over a Constitutional Convention.

    "It is a nice irony," Vidal said, "that the far right — disguised as conservatives — can take credit for so fundamental and radical an upheaval. In order to balance the budget by law, to put prayer to God and Mammon in the schools, to forbid abortion, pornography and drugs, they have set in motion the great engine that will overthrow the very Constitution that they insist be so strictly constructed."

    Admitting that he favors a new Constitutional Convention, Vidal added, "I can view with a certain serenity the restructuring of our political institutions. After all, such a convention could — and probably would — supersede Congress."


    Further Reading: Con Con


     
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