SILENT CRISISTamperingWith theConstitutionby Don Fotherlngbam

The U.S. Constitution is in danger. The prospect of a con ­stitutional convention has prompted historians and legalscholars 10 speak out and explain the perils of assemblingsuch a body.

WHAT IS A CONVENTION?A constitutional convention (often called a con-con) is

. unique to a free society. In our country the people are sov­ereign. When jbe people appoint delegates 10represent themin a coo-con, those delegates exercise their authority byvirtue of powers inherent in the people. Such powers gave usour Constitution at the first Convention held in Philadelphiain 1787.

In the closing days of that historic assembly. our FoundingFathers provided two methods for future generations to addamendments to the Constitution.

Under Method #1, two-thirds of both housesof Congresspropose amendments, and' then three-fourths of the statesratify them.

And under Method #2, two-thirds of the states catl for afederal constitutional convention, and then three -fourths ofthe states ratify whatever amendments are proposed by theconvention.

Although both methods are established in Article V of theConstitution, the second, by federal convention, has neverbeen used. All 26 amendments now a part of the Constitutionoriginated in Congress and were ratified by three -fourths ofthe states.

Why has a convention never been used? Mainly becauseit places too much authority in one place. Over the years, ourleaders have wisely avoided a con-con because such anassembly might follow the precedent of 1787 and exceed itsmandate. Historians and scholars see the first convention asa "runaway," and they fear that a second con-con might dolikewise. II was providential that our Founding Fathers didwhat they did. But it hardly seems wise to trust the specialinterests of today with powers that could be used either to re­write the Constitution, or to erode it through a series of"limited" conventions.

A PROPITIOUS TIME FOR A CON.CON?Before the Constitution was ratified and while a few state

officials were still uneasy about certain parts of it, there

began a movement to reopen the convention. James Madisonwas horrified by the mere suggestion of reconvening. In aletter to George Turberville, he said:

Under all these circumstances it seems scarcely tobe presumable that the deliberations of the bodycould be conducted in harmony, or terminate in thegeneral good. Having witnessed the difficulties anddangers experienced by the first Convention whichassembled under every propitious circumstance, Ishould tremble for the result of a Second.

We do not presume that Madison never intended ArticleV's convention authorization to be used. But he wisely knewwhen not to use it. The year 1788 was not a good time; andtoday, if anything, is far worse. Anyone looking clearly at themental and moral climate ofour time must tremble at the verythought of a second convention. We must safeguard theConstitution by preventing a convention until we discover agenuine structural weakness that Congress refuses to dealwith. Even then, there should be no convention until a wiseand vigilant people can assemble "under every propitiouscircumstance."

In the meantime, Americans should keep the door lockedand not allow uninspired men to tamper with our greatestnational legacy, the Constitution of the United Slates.

II is hard to imagine a modern con-con that would not fallunder the influence of the national media. Most major issuesare framed by the opinion molders in government, and thepress. Such influence could lead to dangerous constitutionalchanges . even the breakdown of safeguards built into ourform of government. A con-con could alter the separation ofpowers, expand the authority of the President . grantlegisla­live power to the Courts, and limit representation in Con­gress. A convention having power to do good would alsohave the power to do bad. Allowing a con-con at this time inour history is not worth such a risk no matter how compellingthe cause may be.

"The discretionwithwhichCongress maydischarge thisdLrty is pregnantwith danger evenunder the most"'­conditions."

"Myunderstand­ingolthe federalconvention isthatit is a gener­alconvention;thatneither thecoogress nortilestates may limitthe amendmentsto beconsideredand proposed bytheconvention."

"My own beliefis that aconstitutionalconventioncannot beconfined to aparticularsubject...."

"In my view theplurality of"amendments'opens the doorto consnunoretchange farbeyond merelyrequiring abalanced federalbudget."

Chrislopher BrownProlessor of lawUniversity of Maryland

Charies Alan WrightProlessor ct LawUniversity of Texas

Neil H. CoganProlessor of lawSouthern Methodist University

Lawrence G. TribeProfessor of ConsfitutionallawHarvard University

The ytaJ:~ menarepushing for a con-con.

Legislative Exchange Council (ALEC) directed by variousstale legislators; and the Republican National Committee(RNC) chaired by Lee Atwater.

These groups are funded mostly by contributions fromunwary citizens who think their projects lead to a moreresponsible Congress. The RNC, of course, enjoys supportfrom millions of Americans who think the Republican Partystands for God , family, and fiscal responsibility.That percep­tion, unfortunately, cannot be reconciled by performance.

James Davidson and Lewis Uhler are probably unwittingpawns of the conspiracy. Davidson runs a successful direct­mail fundraising enterprise at the expense ofnaive conserva­tives who think. the NTU is going to bring about lower taxes.Uhler also makes a good living raising funds to "limit taxes,"

lewIs K. Uhler.lIme. Dnid.on

and "balance the budget." He insists that an already "out ofcontrol Congress" can issue guidelines that will control aeon­con. Both men have done great harm by assuring statelegislators that a convention call will "pressure" Congressinto balancing the budget and that a convention, in reality, isnot likely to occur.

While there is no proof that Davidson or Uhler knowinglywork for conspirators, there is reason to believe that ALECand the RNC are tiedclosely to the private Council on ForeignRelations (CPR) that works for the creation of a socialisticworld government. The United States Constitution,ofcourse,is totally incompatible with world socialism. If the CFR andother like-minded groups have their way, the Constitutionwould have to be gradually eroded, radically altered, orentirely scrapped. Certain CPR members are clearly seen asconspirators who work for these goals.

BIG SURPRISEIt comes as a news flash to most Americans to learn that 32

states have called for a con-eon in the interests of adding abalanced budget amendment to the Constitution. North Da­kola was the first stale to do so in 1975, and Missouri was the32nd in 1983.

According 10Article V, Congress must call a conventionwhen two-thirds oftbe states apply. That magic number todayis 34 states. Alabama, Florida and Louisiana have nowformally withdrawn their calls leaving 29 intact. In otherwords, our nation is only five states away from having a newcon-con. Advocates of the convention are now working in 18stales to capture not five, but two more . If they get two moreslates to pass resolutions for aeon-con, they plan to challengethe recent withdrawal actions of the three states, and to throwthem into the courts while going ahead with a convention.Despite the historical precedent and the warnings about thedangers of a con-con given by an array of legal scholars,ambitious individuals are working hard to bring about such anassembly .

CONSPIRATORS AND OPPORTUNISTSThe movement to bring our Constitution into a convention

is being directed by conspirators and carriedout by opportun­ists. Unfortunately they are assisted by many sincere statelegislators and naive citizens.

The opportunists are ambitious and organized. They carryconservative credentials and speak fluently about loweringtaxes, balancing the budget, limiting congressional terms,andjust getting government undercontrol. The names of theirgroups seem innocuous enough and arc disarming to theaverage patriotic American: the National Taxpayers Union(NTU) headed by James Davidson; the National Tax Limita­tion Committee (NTLC) led by Lewis Uhler; the American

COMPELLING CAUSESOver the years, a variety ofconcerns have initiatedcalls for

a constitutional convention: child labor, protective tariffs,federal taxing power, direct election of senators, abortion,balanced budget, limiting the terms of congressmen, flagburning, etc. Of course, each call resulted from a majorconcern. Yet the apparent need to solve the problem couldlead to far more serious trouble : tampering with the U.S.Constitution. Fortunately, two-thirds of the states have neverissued concerted convention calls, so none has been heldsince the first in 1787.

'In myview, aconvention

'" cannot beeffeclivelylimited."

..~ ."Ris doubtfullhatCongresshas ttlepower tolimit theconvention tothe proposal 01amendmentsonly ona singlesubject"•

I

"An Article Vconventon mustbe entirelygeneral, andastateapplicationasking forsomething otherthanthat isvoid."

"A Convenlionmight proposea singleamendmentbut itwouldclearly have awider range."

Jeffe~on B. fonlhamProfessor oflawUniversity 01 Utah

CharlesL. BlackSler~ng Professor Emeritus of lawYale University

Charles E. RiceProfessor of lawNoire Dame University

Gerald GuntherProfessor of LawStanford University

Someprominent peoplewant10 use the occ:asion ofa newconsUlutional convenllon 10 changeourform 01 governmenl.

obvious. Its spokesmen enthusiastically show the world theirsuperior "intelligence" and delight in pointing to the "short­sightedness" of our Founding Fathers.

no effect in the event such convention not be limitedto the specific and exclusive purpose of proposing anamendment to balance the federal budget.

Unfortunately, this clause leads to a false sense of secu­rity. Article V of the U.S. Constitution authorizes the statesonly to apply for a convention. Once underway, a conventionmakes its own rules, and once fully assembled , it could rejectany or all restrictions on its activity and assert its supremepower by virtue of its direct authority from "we the people."

I.The convention could abolish or alter the rulesof ratification as was done in 1787.

2,Article V authorizes Congress to decide on themode of ratification: either by the state legislatures,or by special ratifying conventions set up in thestates. On two occasions, special state conventionswere empaneled when state legislatures were notlikely to approve. The original Constitution wasratified in exactly that way. Again, in 1933, whenmany state legislatures were opposed to legal liquorsales, the 21st Amendment was ratified in specialstate conventions, thus circumventing the legisla­tures of the states.

STATE RATIFICATION NOT FOOLPROOFThose who insist there is nothing to fear from a con-con

maintain that even if it were to get out of control and draft adangerous amendment, it would take three-fourths (38) ofthe states to ratify it. They ask, "Would 38 states ratify a badamendment?" At first glance, it seems unlikely that the stateswould allow any such mischief. But two historical facts arenever mentioned by con-con advocates, and these are cru­cially important points:

llancyKassebaumUoydN.CutlerC. Dougf.. Dillion

OVERT AND ELITEThere are other groups working hard to change our form

ofgovernment, These differ from the usual mold ofconspira­tors inasmuch as they advertise and publish their extensiveplans to "streamline" government by radical surgery on theU.S. Constitution. Most notable of these is the Committee onthe Constitutional System (CCS), co-chaired by KansasSenator Nancy Kassebaum, fanner Secretary of the TreasuryC, Douglas Dillon, and former Counsel to the PresidentLloyd N. Cutler. These highly influential individuals wouldlike to see a con-con for the purpose of "reforming" Ameri­can government. Dillon and Cutler are members of the CFR.While they may have taken their cue from CPR leadership,it is doubtful that their activities enjoy any full and openendorsement of the CFR even though Cutler's desire to alterthe Constitution was published in the CPR's prestigiousquarterly, Foreign Affairs. Plans of the CCS are too open and

COVERT AND QUIETOn the other hand, the con <on movement in the state

legislatures is being promoted at a dangerously quiet level.This movement must be exposed. Advocates of a conventionoffer false assurances that it can be limited to a single subject.Some slate legislators feel perfectly safe with their state'scall for a constitutional convention because they have addedto it a "null and void" clause similar to the following takenfrom the Idaho resolution:

Be it further resolved that this application andrequest be deemed null and void, rescinded, and of

BIG STEPS FOR BIG PROBLEMS?How then can we ever balance the budget? Is it not worth

the gamble of a con-con inasmuch as our nation's financialcondition is growing more worrisome each year? The "tax"men are experts in arguments of this kind. In testimonybefore legislative committeea.the N11.J, NTLC, ALEC, andother prccon-con groups paint a frightening scenario involv­ing a crisis certain to occur if convention calls are notsustained. The answer to such nonsense is simple: Do youwant a fiscal collapse or a structural collapse? If the bloatedU.S. budget produces a major financial crisis, we could best

"Ihave also repeatedlygiven myopinion lhatthere is no effectiveway 10 limit or muzzle the actions01 a Constitutional Convention.Theconvention could make itsown rules and sel its own agenda.Congress mighllry to limittheConvention to oneamendment orto one issue,bUllhereis no wayto assure thatthe Conventionwould obey it."

·Constitutional, economic andpolitical science experts are onrecordand have expressedconcerns that theconvening of aFederal Constitutional Conventionwould constitute a reckless use01a constitutional device whicll islittle undersloodand has neverbeen employed in ourentirehistory."

WarrenE. Bu~er, Chief Justice(retired)United StatesSupreme Court

linda Rogers Kingsbury. PresidenlCitizens 10 Protect the Conslitution

(Alabama, Florida. and Louisianahave withdrawn their calls.)

plished, however, only if a leakproof Constitution is main­tained. It must be kept intact for that day when cit izens returnto God, and statesmen return to government. It is imperativethat we maintain those carefuUy drafted separations, thosebrilliantly conceived checks and balances. and those spar­ingly enumerated powers during these times of deceit andcontroversy.

WHAT CAN YOU DO? Every American must work toprotect the Constitution by opposing convention calls ema­nating from their state legislatures . The following 29 stateshave issued standing calls for a constitutional convention,and those calls must be withdrawn.

The remaining 18 slates hav e never called for a convcn­lion and citizens must keep a vigilant watch to block legisla­tion, in any of these states. that calls for a convention.

weather the storm on a firm constitutional foundation. Con­can advocates regularly focus on a particular problem. thendishonestly pose a federal constitutional convention as theultimate solution. The safe and certain solution is at the ballotbox where big spenders and big borrowers can be sent into re­tirement.

BALLOT BOX MAGICCongress has no fear of a convention. For that matter, our

politicians really don 't fear the ballot box as long as mostvoters remain uninformed. But an informed citizenry. armedwith voting power, is the great worry of most members ofCongress. The American system is designed that way . It wasplanned at the first Convention that citizens would refuse tovote for hig spenders, traitors. and charlatans.TheConstitutionis not flawed. but many of our elected (and unelected)officials most certainly are.

There is no need to change the U.S. Constitution in orderto balance the budget. What is needed is enforcement of itsprovisions which limit spending to constitutionally author­ized government functions. The Constitution carefully limitsthe U.S. Government to specific areas ofactivity and prohib­its it from all others. Until this principle is widely understoodby wise and vigilant voters. con-eon con -artists will continueto make fools of state legi slators. and political opportunistswill continue to tax and spend at every level of government.

WHY PROTECT THE CONSTITUTION?Informed Americans realize that many officials in all

branches of our government pay little attention to theConstitution. It is known that they do just about what theywant , giving only lip service to "the constitutionality" oftheir actions. In view of such disregard for the Constitution,why is it so important that citizens work to keep it out of theclutches of a con-con? What difference could it make?

AK AlaskaNH New HampshireCO ColoradoNO North DakotaID IdahoPA PennsylvaniaKS KansasMDMarylandlIT UtahNE Nebraska

CA CaliforniaNJ New JerseyIL IllinoisRI Rhode IslandMA MassachusettsWVWest Virginia

NV NevadaAR ArkansasNC North CarolinaGA GeorgiaOR OregonIA IowaSO Soulh DakotaTX TexasMO MissouriWY Wyoming

MT MontanaHI HawaiiOH OhioME MaineWA WashingtonMN Minnesota

AZ ArizonaNM New MexicoDE DelawareOK OklahomaIN IndianaSC South Carolina1N TennesseeMS MississippiVA Virginia

cr ConnecticutNY New York.KY Kentuckyvr VennonlMI MichiganWI Wisconsin

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The answer: Truth will ultimately prevail. Many citizenswork dilige ntly to get government back to its limited role .The time will come when enough people have been awak­ened so that they will have the ability to force that runawaygovernment genie back into his bottle. This can be accom-

The author, Don Fotheringham, isaformer college teacherandismanager ofthenational effort to Savethe Constitution. a priority project of The John BirchSociety. Foradditional copiesofthisartide call414-749-3783, orwrite - P.O.aox8040. Appleton. WI 54913 - 10copiesfor$2.00, 100copiesfor $12.00,1000copies for$100.00