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COMMENTARY: Constitutional convention offers false hope

by Tribune News Service | December 4, 2022 at 4:00 a.m.

Of all the harebrained things we could do to our form of government, possibly the hairiest would be to call a constitutional convention to rewrite our founding document.

But that's not stopping some folks from calling for one. Over the years, I've learned that people who carry the Constitution in their pocket seem to know the least about it and are the quickest to call for changing it.

It makes great fodder for political rallies. It's an opportunity for right-wingers to rail against a federal government they consider to be out of control and demand the draining of the swamp.

That's popular with major political donors, including Koch Industries, which has provided massive financial and lobbying support over the years to the movement. It allows politicians, including such luminaries as Florida Gov. and soon-to-be presidential candidate Ron DeSantis, to pretend like they're doing something.

And a left-wing movement several years ago called for a constitutional convention to overturn the Citizens United court decision.

But it's all pretty much a mirage. Actually changing the country through a constitutional convention is a task that's beyond the capabilities of well, anyone.

The supporters of a constitutional convention lean on the reed of a never used provision in Article 5 of the Constitution.

Article 5 contains two separate processes for amending the Constitution.

There's the one we're all familiar with from high-school civics, where Congress passes an amendment by a two-thirds vote and then sends it out to the states for ratification. If three-fourths ratify, it's a done deal. That's the way every amendment in U.S. history has happened.

But there's another, lesser-known process where two thirds of the states, 34 of the 50, can apply to have a convention to propose amendments. If 34 states apply, Congress has to set up a time and place to have it, and then step back and watch the fireworks.

But the big problem, as outlined by Washburn Law School dean and constitutional law expert Jeffrey Jackson, is that there are very few rules to govern such a gathering.

In a chalk-talk Tuesday at the Wichita library, sponsored by the League of Women Voters, Jackson said about the only thing that is certain is that the convention would be as autonomous as the original Constitutional Convention in 1787.

That means the delegates could amend the Constitution as it stands, or pretty much start over and rewrite it.

But the logistics are daunting, because the Founding Fathers didn't write anything into the Constitution that set the rules for a convention of the states.

As many as 33 states have, at one time or another, joined in a call for a constitutional convention in recent years. "We've been basically one (state) away," Jackson said.

But several states repealed their applications when they found out they couldn't limit a convention to their pet issues -- mostly balanced budgets and term limits on federal offices.

Right now, we're somewhere between 19 and 29 states with pending applications of varying validity.

But even if 34 states do call for a convention, that's kind of the least of the problems.

"The greatest hurdle in all of this is figuring out the ground rules on how you vote on proposed amendments," Jackson said.

No one knows whether the rule would be one-vote, one state, which would favor low-population states, or apportioned by population, with larger states getting more voting delegates.

It's not even clear who would get to vote on that decision in the first place. Politically, it's a "Which comes first, the chicken or the egg?" paradox.

The founders were silent on that. And neither the Congress nor the courts can tell a constitutional convention what they can do.

And even if the convention did figure out some way to seat itself, any amendments that come out of the process would still be subject to ratification by three-fourths of the states

If the small states get to take over the convention, the large states would be unlikely to ratify their proposals, and vice-versa.

So you see why I call it a mirage.

The Kansas Legislature has shown rare good sense in rejecting calls for a constitutional convention several times since a big push started back around 2016.

The majority of our legislators are for it (of course), but they haven't been able to get the two-thirds supermajority they need to officially apply to Congress. This year, it failed by eight votes in the House.

Let's keep it that way. Or better yet, let's just never bring it up again.

Dion Lefler is opinion editor of the Wichita Eagle.

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