Article V of the Constitution is a not-so-secret weapon for opponents of ObamaCare and other federal outrages.
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“As public opposition to the mandate builds, this gives judges the fortitude they normally lack to enforce the Constitution against the will of Congress, which they deem to be the popular will,” he said. “If it’s not the popular will, they’re a lot more willing to strike down laws that they otherwise would uphold.”
CRITICS OF CALLING A CONVENTION doubt that it could actually be reined in once it is called.
“They’re dreaming,” Schlafly said of those who think a convention could be controlled. “Have you ever been to a big convention? You know perfectly well that once a convention is convened, it can do whatever it wants to. Whoever is handling the gavel can gavel people down and do whatever they want. I’ve been to too many conventions, and there’s no way it can be limited.”
To bolster her case, Schlafly cited a letter sent to her in 1988 by former Supreme Court chief justice Warren Burger, which is viewable on the Eagle Forum website.
Burger wrote that “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.”
Responding to the argument that any changes would need to be ratified by three-quarters of the states, Schlafly said, “I have other plans for the next 10 years than running around to state legislatures telling them to reject whatever this convention does. Why should we go through that type of agony?”
Gary McDowell, a constitutional scholar who teaches at the University of Richmond, said, “My general take is, any such convention will always be a disaster for my side.… You always think the convention is going to be our guys, and it’s not our guys.”
Claremont’s Uhlmann was also critical. “Constitutional conventions aren’t things to toy with,” he said. “I for one, would not like to call for a constitutional convention, because I don’t trust the spirit of the age. It could go anywhere.”
Furthermore, he said he views it as an unnecessary risk. “If you had the political heft in numbers to call a constitutional convention,” he said, “you would surely have the political heft in numbers to control the Congress, and the executive as well. So why not do it that way?”
BUT TO PROPONENTS of the idea, those who seek to limit the power of the federal government shouldn’t be skittish about using this tool left to us by the Founders.
“The real question is, where is the greater risk?” Natelson asked. “Think of the idea of a runaway. In order for a runaway convention to succeed, the convention would have to ignore its duty, Congress would have to ignore its duty, the courts would have to not perform their duties, and the states would have to ratify something nobody wants. The idea that this convention can rewrite the Constitution as it likes is about as remote as the sun not coming up tomorrow. Theoretically it could happen, but it is an absurdly small possibility. But the important thing is, you have to weigh that against the virtual certainty of risk if we continue on the path we’re going down. It is a virtual certainty that Congress is going to continue to do the things it does unless it’s reined in. It’s a virtual certainty that they’re going to break whatever other constitutional barriers still exist against them.… The last 40 years has proven that the system is broken, and it’s not going to be fixed without action.”
He added that “if we don’t use a mechanism that the Founders designed for the purposes for which they designed it, then we’re not paying respect to their design.”
Barnett made a similar point. “We now have a runaway Congress,” he said. “What’s worse, a convention that can be checked in numerous ways — not just one way, but many ways — or the runaway Congress we now have? We have a clear and present danger of the runaway Congress.”
Should the U.S. Supreme Court decide that ObamaCare’s individual mandate is constitutional, it would mean that Congress has the power to force everybody to purchase a product that they may not want, which would have staggering implications for both personal liberty and federalism. Calling an Article V convention may represent an unprecedented step, but with Congress taking unprecedented steps to erode individual freedoms and eliminate the concept of state power, those who believe in limited government should, at the minimum, be considering the possibility.
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