A CASE AGAINST A CONVENTION OF THE STATES.

• Author: Smith, Kevin M.

1. INTRODUCTION

   Nine of the original thirteen states ratified the Constitution of the United States of America in 1788. (1) Nearly two hundred and thirty years later, it is the oldest "charter of government" still governing its people; (2) the next oldest is Norway's Constitution, enacted in 1814. (3) The U.S. Constitution's ratification followed the American Revolution, a conflict that happened because England's King George and Parliament treated the colonies like an illegitimate child, taxing them as a means of paying for the British Empire's many forays into foreign lands and not granting the colonists representation in Parliament--thus disallowing the colonists to have a say in how their taxes were spent. (4) There were other usurpations to which natural-born Englishmen were entitled due to birthright, tantamount to a denial of equal protection of the laws under post-Constitution America. (5) It is, therefore, a Constitution that emerged from trial by fire, vulcanized by the heat of righteous revolution insulated and protected by the Teflon-hard blood of patriots.

   The Constitution has survived the ravages of a Civil War fought over the rights of southern states to retain slaves to work their plantations, wrongheaded wars with neighboring nations, two world wars, a cold war that included two "hot" ones in Korea and Vietnam, two Persian Gulf wars, an ongoing war against terror, and many cultural revolutions spurred by the Constitution's protections against discrimination and the government's suppression of civil rights. How could our Constitution endure for so many years?

2. A CASE AGAINST A CONVENTION OF THE STATES

   1. If You Want a Constitution That Spans Generations, Better to Have Brilliant and Successful Revolutionaries Writing It Than Smart, Spoiled Brats

      The forty founding fathers who wrote the Constitution were brilliant--all of them, not just one or two. Among them were George Washington, Benjamin Franklin, James Madison, and Alexander Hamilton. (6) Almost all fought in the American Revolution. (7) More impressive was the diversity of the founders' life experiences; few were "career" politicians. (8) Specifically:

      * Thirty-five were lawyers, although not all practiced the law as a career. (9) Several were judges. (10)

      * Thirteen--Blount, Broom, Clymer, Dayton, Fitzsimons, Gerry, Gilman, Gorham, Langdon, Robert Morris (as opposed to Governor Morris), Pierce, Sherman, and Wilson--worked in business, shipping, or as merchants. (11) Six--Blount, Dayton, Fitzsimons, Gorham, Robert Morris, and Wilson--worked in major land speculation. (12) Eleven--Bedford, Blair, Clymer, Dayton, Fitzsimons, Franklin, King, Langdon, Robert Morris, Charles Cotesworth Pinckney, and Sherman--were securities speculators. (13) Twelve--Bassett, Blair, Blount, Butler, Carroll, Jenifer, Mason, Charles Pinckney, Charles Cotesworth Pinckney, Rutledge, Spaight, and Washington--owned farms or plantations. (14)

      * Franklin, McHenry, and Mifflin were "retired from active economic endeavors." (15) Franklin and Williamson were also engaged in scientific pursuits. (16) The physicians in the group were McClurg, McHenry, and Williamson, (17) and Johnson served as president of a university. (18) As far as spiritual ventures were concerned, Baldwin was a former minister, (19) while at least Williamson, Madison, and Ellsworth had not been ordained but had studied some theology. (20)

      * Washington and Robert Morris were wealthy, (21) as were a few others--Carroll, Houston, Jenifer, and Mifflin. (22)

      * Baldwin, Blair, Brearly, Gilman, Jenifer, Livingston, Madison, and Rutledge were the only nine out of forty to receive much income from serving in public office. (23)

      Suffice to say that successful men masterminded a Constitution intended to preserve the freedoms in which they believed, thanks to real-life experience, and one that enabled them and their posterity to live free, personally and economically, into the foreseeable future and beyond. They went into the process believing in the Declaration of Independence's tenet of faith that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." (24) They believed that a Constitution should restrain the national government from interfering with local control as well as from suppressing the People's unalienable rights. (25)

   2. "The Tree of Liberty Must be Refreshed from Time to Time with the Blood of Patriots and Tyrants" (26)

      Fast-forward 227 years. Americans are once again disillusioned by the direction the country has taken. Specifically, since 1937, the federal government (all three branches) has expanded to impact many aspects of civilian lives that the founding fathers never envisioned. The government can now control the quantity of crops that a citizen can grow for his own consumption. (27) Teachers cannot pray with their students. (28) The right to abortion has been read into amendments, including the First, Fourth, Ninth, and Fourteenth. (29) The federal government has forced its citizens to buy health insurance. (30) The national debt has grown so large that few envision any chance of ever seeing a dime from the social security trust fund that they have been contributing to for all of their working lives. (31) In the words of Howard Beale from the movie Network: "I'm as mad as hell, and I'm not going to take this anymore!" (32)

      What is the answer to this encroaching government? Some say another convention of the states, which would allegedly be limited to amending the Constitution to reign in the executive, legislative, and judicial branches to where they were before their "illegal" encroachments. (33) However, we must be very careful with what we ask for because we might get it, and the more important question is whether a modern manifestation of a constitutional convention would destroy rather than protect our unalienable rights.

   3. The Scope of the First Constitutional Convention was Limited to Amending, too, but It Produced a Brand New Constitution

      The Articles of Confederation and Perpetual Union was the first written Constitution of the United States of America. (34) Under the Articles of Confederation, the states remained sovereign and independent. (35) Congress was the last resort when states disputed matters. (36) Congress could make treaties and alliances, as well as maintain a military and create currency. (37) However, the Articles of Confederation did not give Congress the power to tax and collect revenue from the states, and Congress had no power to regulate commerce. (38) The result of these shortcomings was that the United States as a nation had little power over its component states.

      Indeed, the inability to regulate commerce alone resulted in states competing against each other for trade agreements, which created the danger that the union might separate if one state's bargaining power unfairly excluded another's (or several others') economic interests. (39) The survival of the union depended on rectifying these shortcomings by giving the central government more control over issues that demanded unity, such as collecting revenues to meet the federal government's obligations, (40) and a unified trade policy to prevent individual states from negotiating trade agreements that favored individual state's interests over the nation's collective interests. (41) It also needed the ability to raise a national army with the means to tax the states for the costs of the common defense. (42)

      In February 1787, the Continental Congress called for a convention of delegates "to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union." (43) This language has been interpreted to mean that the first convention was supposed to amend and revise the Articles of Confederation to address its shortcomings and not to replace it with an entirely new document. (44) But that is not what happened. Instead, the Articles of Confederation were thrown out and an entirely new form of government was adopted--one that preserved state sovereignty for local issues, (45) and vested in the federal government powers necessary for maintaining a strong Union on matters of national interests. (46) It also codified the separation of powers with three coequal branches of government--the legislative, (47) executive, (48) and judicial (49)--and provided for an amendment process that enabled future generations to modify the Constitution to address issues not considered by the convention, such as the first ten amendments that preserved for posterity our "unalienable rights," commonly known as the "Bill of Rights." (50)

      We were lucky. Although the first convention's delegates went beyond their mandate, they had risked life and limb to stand up to King George and the English Parliament in the Revolution and knew the price to be paid by yielding to an oppressive government. (51) As Benjamin Franklin put it when the founders signed the Declaration of Independence: "We must... all hang together, or most assuredly we shall all hang separately." (52) As stated earlier in this article, the founders were brilliant, successful men before, during, and after the Revolution. They were uniquely qualified to represent not only their generation, but all future generations. They were also still nursing the wounds, both literal and figurative, inflicted during the Revolution. The same cannot be said about today's leaders.

   4. Slavery Does Not Render the Founding Fathers Illegitimate and Is Not the Three-Thousand-Pound Gorilla That Many People Think It Is

      I am sure that many reading this article are adding a "but" to my compliments of the founding fathers. They owned slaves. (53) They did, which begs the question whether they were truly qualified to consider the proposition that "all men are created equal." (54) The assumption is...