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Playing Chicken With the Constitution
The New American | 4/19/04 | George Detweiler
Playing Chicken With the Constitution by George Detweiler
The NRA’s Wayne LaPierre proposes using the threat of a constitutional convention to pressure Congress to repeal the anti-free speech provisions in the McCain-Feingold law.
Mr. Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.
The clear language of the Constitution is often violated and circumvented by elected and appointed officials entrusted to honor and defend it. However, so long as the Constitution is kept intact as the highest law of the land, there is still realistic hope that the federal government will begin operating within its strictures once again. All that is necessary is for an aroused and organized citizenry to apply informed pressure on their elected officials — particularly their congressmen — to do what they promised they would do when they took their oath of office.
Congress could repeal harmful legislation such as the Bipartisan Campaign Reform Act, more commonly known as McCain-Feingold, which infringes upon our constitutionally protected right to free speech. Congress could also rein in activist federal judges by limiting their jurisdiction to hear certain types of cases, based on a little-known, but vitally important, power granted to it in Article III, Section 2 of the Constitution. Congress could even, when necessary, impeach federal judges — and rogue presidents too, for that matter.
But what if the Constitution were radically changed? What if the federal government, instead of being barred from exercising powers not delegated to it, were instead empowered to do anything not expressly prohibited? What if much or all of the federal government’s existing body of unconstitutional statutes were suddenly made constitutional — not by revising or repealing the statutes through corrective legislation but by radically amending the Constitution? What if the Second Amendment were weakened or eliminated? What if the brilliant system of checks and balances, which the Founding Fathers so carefully crafted into the Constitution, were scrapped, ostensibly to make government more efficient? What then?
If, God forbid, we lose our Constitution through radical amendment, there would be very little hope of preserving our threatened liberties. Without the Constitution, the American people, once awakened, would no longer have a solid foundation to go back to (through their congressmen) to restore good government. It is therefore imperative that the Constitution be preserved at all costs.
On March 10, the Virginia Legislature approved a resolution that withdrew and nullified its previous applications to Congress to call a constitutional convention (con-con) to amend the U.S. Constitution. Those legislators passed this resolution because constituents had brought to their attention the fact that a con-con cannot be limited to considering a particular amendment or amendments. It could, in fact, propose any number of amendments on any number of subjects; it could even propose replacing the present U.S. Constitution with an entirely new document. They did not want to chance a convention being called possessing that amount of power and so withdrew their previous applications.
On January 23, Wayne LaPierre, executive vice president and CEO of the National Rifle Association, addressed the Conservative Political Action Conference (CPAC), where he acknowledged that a con-con was "a means of last resort more powerful than the Congress and Courts put together." Yet, instead of rejecting this approach for amending the Constitution — as did the Virginia Legislature less than two months later — he advocated using the threat of a con-con to pressure Congress into eliminating the anti-free speech provisions in the McCain-Feingold law. In essence, he recommended playing a dangerous game of chicken, with the participants being the state legislatures on one hand and the Congress on the other, and with the stakes being not just McCain-Feingold but the U.S. Constitution.
Article V
In his CPAC speech, LaPierre acknowledged that the con-con approach to amending the Constitution "hasn’t been used in 215 years" — that is, since the Constitution was ratified. "It’s buried in the Constitution’s Article V, which authorizes the people to convene a Constitutional Convention and seize power once again."
Article V provides two methods for proposing amendments to the Constitution and two methods for ratifying those amendments: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid … when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress...."
To date, all amendments to the Constitution have been proposed by Congress; none has been proposed by a con-con since no con-con has been called. And no con-con has been called because enough Americans, including those who support particular amendments to the Constitution, have recognized that the power of a con-con cannot be limited.
In his speech, LaPierre explained the unlimited powers of a con-con this way: "[A] Constitutional Convention can amend the U.S. Constitution as it sees fit on any topic, without asking anybody for permission." Keeping in mind that LaPierre was speaking loosely — the amendments proposed by a con-con must be ratified by three-fourths (38) of the states before becoming effective — he is essentially correct. Neither the state legislatures, which apply to Congress for a con-con, nor the Congress, which must call a con-con upon receiving the applications of two-thirds (34) of the states, can dictate what subject(s) a con-con addresses or what amendment(s) it proposes. As LaPierre acknowledged, it would be "more powerful than the Congress and Courts put together" when it comes to constitutional change.
If a modern-day con-con is called, what would the delegates propose? Would they be more responsive to the people than most congressmen — even though, unlike congressmen, they would not have to worry about getting re-elected? If the delegates were to propose radical changes that the state legislatures would reject, would Congress decide instead to send the proposed changes to special state ratifying conventions, thereby circumventing the state legislatures? And, in general, would Americans be beguiled into supporting changes that would do more harm than good — including changes effectively destroying the Constitution’s limits on federal power?
If there ever were a time in our history when a con-con should not be called, it seems obvious that that time is now. Not only would would-be usurpers want to hijack a con-con to implement their Big Government agenda, but the American people probably have less understanding of constitutional principles today than at any other point in our history. It is because of that lack of understanding, in fact, that Congress, the president and the courts have been able to run roughshod over the Constitution for so many years. Calling a con-con will not solve this problem, which can only be solved by getting more Americans informed and involved. But calling a con-con could open up a Pandora’s Box for constitutional change.
Necessary "Last Resort"?
Wayne LaPierre, while acknowledging a con-con’s awesome powers, apparently does not view a con-con as a Pandora’s Box but as a means of protecting freedom of speech from the Bipartisan Campaign Reform Act — which he appropriately identified as "an incumbent protection scheme." "You know it as McCain-Feingold," he continued, "a bald-faced insult to the constitutional freedoms of common Americans. And I’m here to guarantee you, on their behalf, that it will not stand.... A lot of people think that just because the U.S. Congress passed it, and the President signed it, and the U.S. Supreme Court upheld it, that means they can freeze you out, sever your tongue, and choke your voice to silence."
"If they can steal that much freedom today," LaPierre warned, "think what they’ll embezzle from your children and grandchildren, who will never get it back. No we will not be silenced." How would LaPierre stop McCain-Feingold? "We’re going to use every means to restore the First Amendment," he said, including, as a last resort, demanding a con-con. "Our Constitution’s framers — God bless them — knew something like this could happen. So they gave ‘we the people’ a means of last resort.... Until now, it wasn’t necessary."
Now, according to LaPierre, it may be necessary. Or, at the very least, the threat of a con-con may be necessary. LaPierre explained his strategy for defanging McCain-Feingold of its anti-free speech provisions this way:
We will test the limits of McCain-Feingold. We will introduce the repeal of the Wellstone speech gag. And if that doesn’t work, we will begin pursuing the two-thirds of states it takes to petition for a Constitutional Convention. Congress can’t stop us. The Supreme Court can’t stop us.... All it takes is 34 state legislatures. And here’s what’ll happen. When we get to state number 33, like they did in 1912, Congress will buckle. This class of political elites will do what they’ve always done when the people threaten their power. When state number 33 signs up, they’ll back down. And we won’t stop until they restore the full measure of freedom guaranteed by the First Amendment."
But what if Congress does not buckle? Would LaPierre be willing to back down in this game of chicken? No way. "And if needed as a final resort, we will draft into service the ready cooperation of 34 or more state houses and legislatures," he told the CPAC. "We will petition the U.S. Congress and call for a Constitutional Convention they cannot prevent. And together, in defiance of the media and political elite, in defiance of Congress and the Supreme Court, we will seize freedom again."
How so? If there is not sufficient understanding to get Congress to repeal McCain-Feingold’s anti-free speech provisions, what guarantee would there be that an unaccountable con-con would do what is needed and no more? And even if a con-con were to behave as Wayne LaPierre predicts, wouldn’t it be easier to pressure Congress into passing a simple law to rectify McCain-Feingold than to convince 34 state legislatures to petition Congress to call a convention, and then to have its proposed amendment(s) ratified by 38 states?
Yet this question is presumably academic, since LaPierre expects congressmen to buckle "like they did in 1912." That year, Congress proposed the 17th Amendment, to elect U.S. senators directly by the people instead of by the state legislatures. When Congress approved this amendment, many state legislatures had already petitioned Congress to call a con-con for the stated purpose of drafting an amendment for the direct election of senators.
It does not necessarily follow, however, that Congress would have done any different in the absence of the national con-con drive. At the time, the call for the direct election of senators enjoyed widespread support. In fact, several states had already placed the election of U.S. senators on their ballots. Though these early senatorial elections were "beauty contests" without elective effect, the state legislatures in those states elected the winners of the "beauty contests." Congress simply responded to a widespread and growing national movement.
But even if the game of chicken worked in 1912, it does not follow that it would work every time. In the 1970s advocates of a Balanced Budget Amendment (BBA) began pressuring state legislatures to petition Congress for a con-con. By 1983, 32 states had submitted BBA con-con applications to Congress. That was just two states short of the number that would have forced Congress to call a con-con, but Congress did not respond by passing a BBA. Fortunately, the con-con threat was abated when John Birch Society members began contacting state legislators to warn them of the dangers and to convince them to withdraw their previous applications. As of late March, eight states (including Virginia) have withdrawn their BBA applications, reducing the total number of BBA applications to 24.
Even if Congress were willing to rectify McCain-Feingold after the 33rd state application for a con-con in order to avoid a 34th application, it is very possible that a 34th application could be submitted anyway — forcing Congress to call the convention. (The language of Article V states that Congress "shall call," not "may call," a con-con upon receipt of the required number of applications.) The process of seeking con-con applications from 33 of 50 state legislatures is not precisely controllable. To secure the applications, it will be necessary to campaign nationwide, since some states may recognize the danger and refuse to petition for a con-con. One or more states may be finalizing their applications when the 33rd state submits its application. It is even possible that two states could submit their applications on the same day. Precise control is impossible since, after all, it will be the legislators in each state, and not national campaign organizers, who will decide whether or not to petition for a con-con.
It is curious that LaPierre is willing to launch a campaign for a con-con as a "last resort," since the NRA adopted a strong resolution at its annual meeting of members in Salt Lake City in 1992 condemning a con-con for any purpose. The NRA resolution states in part: "[W]e oppose any attempt to call a Constitutional Convention for any purpose whatsoever because it cannot be limited to a single issue and that our rights to keep and bear arms can be seriously eroded." (Emphasis in original.) What was obvious to the NRA membership has apparently eluded Wayne LaPierre.
Has Wayne LaPierre forgotten about this resolution? Does he not understand that an NRA-supported con-con could backfire on NRA members — that it could attack the Second Amendment rather than defend free speech? Should he be reminded by his fellow NRA members?
Elliott Graham of Glendale, California, thinks so. Graham is an NRA Endowment Life Member and chairman of Constitutionalists United Against a Constitutional Convention. He has told The New American that he intends to introduce a resolution on the floor of the NRA members meeting in April to reaffirm the organization’s stand against a con-con. Regarding the "last resort" option of using a con-con to rectify the McCain-Feingold problem, Graham declared, "To have a constitutional convention is like trying to put out a fire with high octane gasoline and pure oxygen."
The New American | 4/19/04 | George Detweiler
Playing Chicken With the Constitution by George Detweiler
The NRA’s Wayne LaPierre proposes using the threat of a constitutional convention to pressure Congress to repeal the anti-free speech provisions in the McCain-Feingold law.
Mr. Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.
The clear language of the Constitution is often violated and circumvented by elected and appointed officials entrusted to honor and defend it. However, so long as the Constitution is kept intact as the highest law of the land, there is still realistic hope that the federal government will begin operating within its strictures once again. All that is necessary is for an aroused and organized citizenry to apply informed pressure on their elected officials — particularly their congressmen — to do what they promised they would do when they took their oath of office.
Congress could repeal harmful legislation such as the Bipartisan Campaign Reform Act, more commonly known as McCain-Feingold, which infringes upon our constitutionally protected right to free speech. Congress could also rein in activist federal judges by limiting their jurisdiction to hear certain types of cases, based on a little-known, but vitally important, power granted to it in Article III, Section 2 of the Constitution. Congress could even, when necessary, impeach federal judges — and rogue presidents too, for that matter.
But what if the Constitution were radically changed? What if the federal government, instead of being barred from exercising powers not delegated to it, were instead empowered to do anything not expressly prohibited? What if much or all of the federal government’s existing body of unconstitutional statutes were suddenly made constitutional — not by revising or repealing the statutes through corrective legislation but by radically amending the Constitution? What if the Second Amendment were weakened or eliminated? What if the brilliant system of checks and balances, which the Founding Fathers so carefully crafted into the Constitution, were scrapped, ostensibly to make government more efficient? What then?
If, God forbid, we lose our Constitution through radical amendment, there would be very little hope of preserving our threatened liberties. Without the Constitution, the American people, once awakened, would no longer have a solid foundation to go back to (through their congressmen) to restore good government. It is therefore imperative that the Constitution be preserved at all costs.
On March 10, the Virginia Legislature approved a resolution that withdrew and nullified its previous applications to Congress to call a constitutional convention (con-con) to amend the U.S. Constitution. Those legislators passed this resolution because constituents had brought to their attention the fact that a con-con cannot be limited to considering a particular amendment or amendments. It could, in fact, propose any number of amendments on any number of subjects; it could even propose replacing the present U.S. Constitution with an entirely new document. They did not want to chance a convention being called possessing that amount of power and so withdrew their previous applications.
On January 23, Wayne LaPierre, executive vice president and CEO of the National Rifle Association, addressed the Conservative Political Action Conference (CPAC), where he acknowledged that a con-con was "a means of last resort more powerful than the Congress and Courts put together." Yet, instead of rejecting this approach for amending the Constitution — as did the Virginia Legislature less than two months later — he advocated using the threat of a con-con to pressure Congress into eliminating the anti-free speech provisions in the McCain-Feingold law. In essence, he recommended playing a dangerous game of chicken, with the participants being the state legislatures on one hand and the Congress on the other, and with the stakes being not just McCain-Feingold but the U.S. Constitution.
Article V
In his CPAC speech, LaPierre acknowledged that the con-con approach to amending the Constitution "hasn’t been used in 215 years" — that is, since the Constitution was ratified. "It’s buried in the Constitution’s Article V, which authorizes the people to convene a Constitutional Convention and seize power once again."
Article V provides two methods for proposing amendments to the Constitution and two methods for ratifying those amendments: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid … when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress...."
To date, all amendments to the Constitution have been proposed by Congress; none has been proposed by a con-con since no con-con has been called. And no con-con has been called because enough Americans, including those who support particular amendments to the Constitution, have recognized that the power of a con-con cannot be limited.
In his speech, LaPierre explained the unlimited powers of a con-con this way: "[A] Constitutional Convention can amend the U.S. Constitution as it sees fit on any topic, without asking anybody for permission." Keeping in mind that LaPierre was speaking loosely — the amendments proposed by a con-con must be ratified by three-fourths (38) of the states before becoming effective — he is essentially correct. Neither the state legislatures, which apply to Congress for a con-con, nor the Congress, which must call a con-con upon receiving the applications of two-thirds (34) of the states, can dictate what subject(s) a con-con addresses or what amendment(s) it proposes. As LaPierre acknowledged, it would be "more powerful than the Congress and Courts put together" when it comes to constitutional change.
If a modern-day con-con is called, what would the delegates propose? Would they be more responsive to the people than most congressmen — even though, unlike congressmen, they would not have to worry about getting re-elected? If the delegates were to propose radical changes that the state legislatures would reject, would Congress decide instead to send the proposed changes to special state ratifying conventions, thereby circumventing the state legislatures? And, in general, would Americans be beguiled into supporting changes that would do more harm than good — including changes effectively destroying the Constitution’s limits on federal power?
If there ever were a time in our history when a con-con should not be called, it seems obvious that that time is now. Not only would would-be usurpers want to hijack a con-con to implement their Big Government agenda, but the American people probably have less understanding of constitutional principles today than at any other point in our history. It is because of that lack of understanding, in fact, that Congress, the president and the courts have been able to run roughshod over the Constitution for so many years. Calling a con-con will not solve this problem, which can only be solved by getting more Americans informed and involved. But calling a con-con could open up a Pandora’s Box for constitutional change.
Necessary "Last Resort"?
Wayne LaPierre, while acknowledging a con-con’s awesome powers, apparently does not view a con-con as a Pandora’s Box but as a means of protecting freedom of speech from the Bipartisan Campaign Reform Act — which he appropriately identified as "an incumbent protection scheme." "You know it as McCain-Feingold," he continued, "a bald-faced insult to the constitutional freedoms of common Americans. And I’m here to guarantee you, on their behalf, that it will not stand.... A lot of people think that just because the U.S. Congress passed it, and the President signed it, and the U.S. Supreme Court upheld it, that means they can freeze you out, sever your tongue, and choke your voice to silence."
"If they can steal that much freedom today," LaPierre warned, "think what they’ll embezzle from your children and grandchildren, who will never get it back. No we will not be silenced." How would LaPierre stop McCain-Feingold? "We’re going to use every means to restore the First Amendment," he said, including, as a last resort, demanding a con-con. "Our Constitution’s framers — God bless them — knew something like this could happen. So they gave ‘we the people’ a means of last resort.... Until now, it wasn’t necessary."
Now, according to LaPierre, it may be necessary. Or, at the very least, the threat of a con-con may be necessary. LaPierre explained his strategy for defanging McCain-Feingold of its anti-free speech provisions this way:
We will test the limits of McCain-Feingold. We will introduce the repeal of the Wellstone speech gag. And if that doesn’t work, we will begin pursuing the two-thirds of states it takes to petition for a Constitutional Convention. Congress can’t stop us. The Supreme Court can’t stop us.... All it takes is 34 state legislatures. And here’s what’ll happen. When we get to state number 33, like they did in 1912, Congress will buckle. This class of political elites will do what they’ve always done when the people threaten their power. When state number 33 signs up, they’ll back down. And we won’t stop until they restore the full measure of freedom guaranteed by the First Amendment."
But what if Congress does not buckle? Would LaPierre be willing to back down in this game of chicken? No way. "And if needed as a final resort, we will draft into service the ready cooperation of 34 or more state houses and legislatures," he told the CPAC. "We will petition the U.S. Congress and call for a Constitutional Convention they cannot prevent. And together, in defiance of the media and political elite, in defiance of Congress and the Supreme Court, we will seize freedom again."
How so? If there is not sufficient understanding to get Congress to repeal McCain-Feingold’s anti-free speech provisions, what guarantee would there be that an unaccountable con-con would do what is needed and no more? And even if a con-con were to behave as Wayne LaPierre predicts, wouldn’t it be easier to pressure Congress into passing a simple law to rectify McCain-Feingold than to convince 34 state legislatures to petition Congress to call a convention, and then to have its proposed amendment(s) ratified by 38 states?
Yet this question is presumably academic, since LaPierre expects congressmen to buckle "like they did in 1912." That year, Congress proposed the 17th Amendment, to elect U.S. senators directly by the people instead of by the state legislatures. When Congress approved this amendment, many state legislatures had already petitioned Congress to call a con-con for the stated purpose of drafting an amendment for the direct election of senators.
It does not necessarily follow, however, that Congress would have done any different in the absence of the national con-con drive. At the time, the call for the direct election of senators enjoyed widespread support. In fact, several states had already placed the election of U.S. senators on their ballots. Though these early senatorial elections were "beauty contests" without elective effect, the state legislatures in those states elected the winners of the "beauty contests." Congress simply responded to a widespread and growing national movement.
But even if the game of chicken worked in 1912, it does not follow that it would work every time. In the 1970s advocates of a Balanced Budget Amendment (BBA) began pressuring state legislatures to petition Congress for a con-con. By 1983, 32 states had submitted BBA con-con applications to Congress. That was just two states short of the number that would have forced Congress to call a con-con, but Congress did not respond by passing a BBA. Fortunately, the con-con threat was abated when John Birch Society members began contacting state legislators to warn them of the dangers and to convince them to withdraw their previous applications. As of late March, eight states (including Virginia) have withdrawn their BBA applications, reducing the total number of BBA applications to 24.
Even if Congress were willing to rectify McCain-Feingold after the 33rd state application for a con-con in order to avoid a 34th application, it is very possible that a 34th application could be submitted anyway — forcing Congress to call the convention. (The language of Article V states that Congress "shall call," not "may call," a con-con upon receipt of the required number of applications.) The process of seeking con-con applications from 33 of 50 state legislatures is not precisely controllable. To secure the applications, it will be necessary to campaign nationwide, since some states may recognize the danger and refuse to petition for a con-con. One or more states may be finalizing their applications when the 33rd state submits its application. It is even possible that two states could submit their applications on the same day. Precise control is impossible since, after all, it will be the legislators in each state, and not national campaign organizers, who will decide whether or not to petition for a con-con.
It is curious that LaPierre is willing to launch a campaign for a con-con as a "last resort," since the NRA adopted a strong resolution at its annual meeting of members in Salt Lake City in 1992 condemning a con-con for any purpose. The NRA resolution states in part: "[W]e oppose any attempt to call a Constitutional Convention for any purpose whatsoever because it cannot be limited to a single issue and that our rights to keep and bear arms can be seriously eroded." (Emphasis in original.) What was obvious to the NRA membership has apparently eluded Wayne LaPierre.
Has Wayne LaPierre forgotten about this resolution? Does he not understand that an NRA-supported con-con could backfire on NRA members — that it could attack the Second Amendment rather than defend free speech? Should he be reminded by his fellow NRA members?
Elliott Graham of Glendale, California, thinks so. Graham is an NRA Endowment Life Member and chairman of Constitutionalists United Against a Constitutional Convention. He has told The New American that he intends to introduce a resolution on the floor of the NRA members meeting in April to reaffirm the organization’s stand against a con-con. Regarding the "last resort" option of using a con-con to rectify the McCain-Feingold problem, Graham declared, "To have a constitutional convention is like trying to put out a fire with high octane gasoline and pure oxygen."
