The only occasion in our nation's history for a Constitutional Convention was the one held in 1787 for the purpose of amending the Articles of Confederation. Despite the requirement in the Articles of Confederation that all state legislatures consent to amendments, the delegates emerged with an entirely new system of government and declared that per the new Constitution's Article VII only 9 of the 13 states were needed to ratify it.
The Constitution has provided for a Constitutional Convention to amend the Constitution, or indeed rewrite it, in Article V:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Except for authorizing a Constitutional Convention, Article V is silent about many important issues. For example:
The Constitution does not permit any restrictions on the subject matter a Constitutional Convention considers.
The Constitution does not guarantee states may choose any delegates to a Constitutional Convention.
The Constitution does not guarantee any state will be represented at a Constitutional Convention.
To paraphrase Chief Justice Warren Burger's admonition, NOBODY TELLS A CONSTITUTIONAL CONVENTION WHAT TO DO!
Actually, here is what Chief Warren Burger said in a letter to Phyllis Schlafly, President of Eagle Forum:
"...there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don't like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress..."
What Chief Justice is referring to regarding the 1787 Constitutional Convention is that although that Convention was called to make small changes in the Articles of Confederation and several states first passed resolutions requiring their delegates discuss amendments to the Articles ONLY, forbidding even discussion of foundational changes, this was not how it turned out. Following the delegates' first agreement that their meetings be in secret, their second act was to agree to debate state restrictions and to declare the Articles of Confederation NULL AND VOID! They also changed the ratification process, reducing the required states' approval from 100% to 75%. There is no reason to believe a contemporary Constitutional Convention wouldn't further "modify" Article V restrictions to suit its purpose. Who can disagree with The American Policy Center when they write:
“Today's corrupt politicians and judges would like nothing better than the ability to legally ignore the Constitution - to modify its "problematic" provisions to reflect the philosophical and socials mores of our contemporary society.
The majority of U.S. voters just elected a dedicated leftist as President. Republicans are at their weakest right now! This is a horrible time to try such a crazy scheme. We cannot control the debate right now! Don't for one second doubt that delegates to a Constitutional Convention wouldn't revise the 1st Amendment into a government-controlled privilege, replace the 2nd Amendment with a "collective" right to self-defense, and abolish the 4th, 5th, and 10th Amendments, and the rest of the Bill of Rights. Additions could include the non-existent Separation of Church and State, the "right" to abortion and euthanasia, and much, much more.
Our uniquely and purely American concept of individual rights, endowed by our Creator, would be quickly set aside as an anachronistic relic of a bygone era; replaced by new ‘collective’ rights, awarded and enforced by government for the ‘common good.’
The problems our nation faces are not a result of deficiencies in our Constitution; rather, they are the direct result of our disregard for that divinely-inspired document of liberty.”
Let us recall what President-elect Barack Obama said regarding the Constitution that his belief is that “the Constitution needs to be interpreted through the lens of current events.”
According to a Fox News report, Obama has stated repeatedly his desire for empathetic judges who "understand" the plight of minorities. In a 2007 speech to Planned Parenthood, the nation's largest abortion provider, he said, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
Melody Barnes, a senior domestic policy adviser to the Obama campaign, said in the Fox News report, "His view is that our society isn't static and the law isn't static as well. That the Constitution is a living and breathing document and that the law and the justices who interpret it have to understand that."
Obama has criticized Justice Clarence Thomas, regarded as a conservative member of the court, as not a strong jurist or legal thinker. And Obama voted against both Chief Justice John Roberts and Justice Samuel Alito, two appointees of President Bush who vote with Thomas on many issues. Further, WND also reported Obama believes the Constitution is flawed, because it fails to address wealth redistribution, and he says the Supreme Court should have intervened years ago to accomplish that. Obama said in a 2001 radio interview the Constitution is flawed in that it does not mandate or allow for redistribution of wealth.
Obama told Chicago's public station WBEZ-FM that "redistributive change" is needed, pointing to what he regarded as a failure of the U.S. Supreme Court under Chief Justice Earl Warren in its rulings on civil rights issues in the 1960s. The Warren court, he said, failed to "break free from the essential constraints" in the U.S. Constitution and launch a major redistribution of wealth. But Obama, then an Illinois state lawmaker, said the legislative branch of government, rather than the courts, probably was the ideal avenue for accomplishing that goal.
In the 2001 interview, Obama said:
“If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.
And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.”
If you think holding a Constitutional Convention is unlikely, think again. Only two more states have to agree to a Constitutional Convention to get the required 34 state approvals for a Convention.
Can you imagine what a Constitutional Convention on Obama’s watch would do to the Constitutional rights we enjoy today?
[Part Two of this series will provide more information to let you decide whether a Constitutional Convention is the right thing at the right time.]