In my prior piece, “Resistance on the Right: Will Conservatives Ever Come Together on an Article V Convention of the States?” I explained that under Article V of the U.S. Constitution, if two-thirds of the states approve resolutions calling on Congress to hold an amendments convention, Congress has no choice but to obey.
I then addressed the two most common conservative critiques of an Article V convention of states—(1) that it is too much of a “long shot,” and (2) that, were a convention called by the needed two-thirds (34) of the states, there is no settled process in place to ensure against a “runaway convention,” in which delegates and/or Congress go rogue and defeat the amendments or produce amendments that were not called for by the states originally. Against this, I argued that the fact that 38 states (three-fourths) are needed to pass any amendment (which means that merely 13 states can block any proposed amendments), should demonstrate that we need not fear a runaway convention.
Now I turn to a still-deeper reason not to fear a runaway convention. If 34 state legislatures actually were to sink the “long-shot,” that is, were they to make history and agree on a convention call, consider the vast multiplicity of coalitions that would need to be formed in each state, between and among states, and across the country. Such a massive nationwide coalition would both require and, in turn, enhance significantly a substantial increase in public knowledge of the nature and causes of federal overreach and of the power of the states and their citizens to combat it through Article V.
The educational effect that such a nationwide debate would have on the American people would be so transformative that it should mollify any runaway-convention concerns, which underestimate the effect on Congress, the executive branch, and the Supreme Court of such an unprecedented movement. Faced with a historic uprising by We the People, unscrupulous delegates and/or Congress would be unable to pull strings from behind closed doors without triggering a national uproar.
Through underestimating the salutary political consequences that would follow a successful effort by 34 states to apply for an Article V convention of states, those fearing its unintended consequences also miss something else: They miss the fact that, in proportion as the Article V movement grows, it will educate everyday Americans in the liberating power of our Constitution.
Today, through no fault of their own, Americans know less and less about the Constitution. This is because our schools teach it less and less. According to the U.S. Department of Education, only one in every three college students graduates having taken even one course in American Government. The reason for this lapse is that over the past half-century, the majority of American colleges and universities have come to no longer require study of the political, moral, and philosophic foundation of the American experiment in self-government.
The result of our schools’ abdication of their responsibility to require civics education was too easy to predict: The Woodrow Wilson Foundation’s nationwide study of civic literacy finds that, whereas 90% of immigrants to this country pass the USCIS citizenship test (which requires six correct answers out of ten multiple-choice questions), only 20 %of native-born Americans under the age of 45 can pass the test.
The nonpartisan higher education group, the American Council of Trustees and Alumni (ACTA) has tracked college civics requirements over the past fifteen years. Its latest study concludes:
There is a crisis in American civic education. Survey after survey shows that recent college graduates are alarmingly ignorant of America’s history and heritage. They cannot identify the term lengths of members of Congress, the substance of the First Amendment, or the origin of the separation of powers. They do not know the Father of the Constitution, and nearly 10% say that Judith Sheindlin—”Judge Judy”—is on the Supreme Court.
In this light, an additional benefit of the Article V movement would be to provide Americans the knowledge they need to restore the Constitution. Americans would learn again that the people already possess their natural rights, before government is ever instituted. That is what “natural rights” means. Through the compact that is our Constitution, the people agree to delegate some of their natural authority to government, but only so long as the government remains faithful to the liberty-promoting purposes for which it was established. Learning this lesson alone would be of immense help to the American people.
In the final count, where one comes down on the convention of states question is the product of one’s estimation of the possible risks and rewards of such an effort. We can expect there to be a good deal of political and rhetorical fireworks. Will the facts about the constitutional history and legal precedents guiding the Article V process be heard above the din? Will the process, if and when it ever moves to an actual convention, be stolen by lawyers, judges, and legislators? Will lawsuits challenging various state resolutions so slow the process that it loses steam? We will not know until and unless 34 states file applications.
In the meantime, consider the take on a convention of states by the late Supreme Court Justice Antonin Scalia. The threshold question for him was “whether we think a constitutional convention is necessary.” Because Scalia deemed a convention “necessary for some purposes,” he was willing to accept what seemed to him “a minimal risk of intemperate action.” Scalia added that the Founders anticipated that Congress would resist giving due “attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power.” For this reason, they provided the remedy in Article V. “If the only way to get that convention is to take this minimal risk, then it is a reasonable one,” concluded Scalia.
I cannot help but agree with the late Supreme Court Justice that the risks are worth it. The people, acting through their state representatives, are less to be feared today than is the federal government. The prospect of a runaway convention is therefore less to be feared than is the reality of our runaway federal government.
In sum, I am not prepared to assert that the Founders put an instrument into the Constitution that would harm the Republic. The Founders were wiser than that. Proof of their wisdom is their anticipation of the day when the federal government goes rogue, for which they provided states a remedy in Article V—if we find the will to use it.