Constitutional convention chaos

Phyllis Schlafly thinks a Constitutional convention called under Article V would be “a recipe for chaos:”

There is no proof that the VIPs promoting an Article V convention have any first-hand knowledge of the politics or procedures of a contested national convention. Don’t they realize that the convention will set its own agenda and that states will have no sayso over which amendments are considered?

A recent example of how a convention chairman wielding the gavel can manipulate what happens is the way the 2012 Democratic National Convention chairman ruthlessly called the vote wrong when a delegate tried to add a reference to God in the party platform. The chairman got by with declaring the amendment passed even though we all saw on television that the “Noes” won the vote.

The whole process is a prescription for political chaos, controversy and confrontation. Alas, I don’t see any George Washingtons, James Madisons, Ben Franklins or Alexander Hamiltons around today who could do as good a job as the Founding Fathers, and I’m worried about the men who think they can.

Although she doesn’t say it explicitly, she’s most likely writing this in response to Mark Levin’s new book, “The Liberty Amendments,” which proposes calling an Article V convention and adding a series of amendments to the Constitution, which would (among other things) cap federal spending and tax levels, impose a balanced budget, restrain political ambitions through term limits, and close the Commerce Clause loophole for infinite government power.  I reviewed the book in detail here.

Retired law professor Rob Natelson wrote a detailed response to Schlafly’s criticism at the American Thinker:

Contrary to Mrs. Schlafly’s claim that “Article V doesn’t give any power to the courts to correct what does or does not happen,” the courts can and do adjudicate Article V cases. There has been a long line of those cases from 1798 into the 21st century.

“But,” you might ask, “Will the prescribed convention procedures actually work?”

They already have. In 1861, in an effort to prevent the Civil War, a convention of the states was called to propose a constitutional amendment to Congress. Congress subsequently deadlocked over the amendment, but the convention did everything right: It followed all the protocols listed above, and it produced a compromise amendment. Although the convention met in a time of enormous stress, this “dry run” came off well, with none of Mrs. Schlafy’s speculative “horribles.”

In any political procedure, there are always uncertainties, but in this case they are far fewer than predicted by anti-convention alarmists. And they must be balanced against a certainty: Unless we use the procedure the Founders gave us to rein in a “runaway” Congress, then Congress will surely continue to run away.

Both articles are well worth reading in full, for anyone interested in the Constitutional convention argument.  Personally, I leaned more in the Schlafly direction before reading Levin’s book.  For the reasons she outlines, I had long assumed the door was pretty much closed on constructive Constitutional amendments.  Anything further would either be dictated by the ruling class, or would result in a carnival of horrors on the floor of a Constitutional convention.

But Levin makes a persuasive case for both the possibility of calling such a convention, and the importance of the amendments he proposes.  Natelson’s response to the Schlafly critique is well-researched and logical.  It wouldn’t be easy to amend the Constitution this way, but I’m persuaded that it can be done, and it’s worth the effort.