Still, many fear a convention will “run away” and threaten fundamental aspects of our constitutional tradition. Critics say that the convention that gave us our own Constitution did just that, and indeed, changed the rules by which amendments to our first constitution, the Articles of Confederation, could be ratified.
But that fear is grounded in an embarrassingly sloppy misunderstanding of our history. The framing convention was not convened pursuant to any clause in the Articles of Confederation. It’s not even clear that the convention was convened in response to any act by Congress. The framing convention, properly understood, was a traditional “constitutional convention,” exercising an “unalienable right,” as affirmed by Jefferson in the Declaration of Independence, to “alter or abolish” their then-failing government.
Our Constitution does not give Congress the power to convene such a convention. The convention that Congress can convene is instead very different. Its only power is to “propose Amendments.” By the plain language of the Constitution, those amendments are not valid unless they are ratified by 38 states. No one is talking about a second constitutional convention. The only question is whether to convene a body that can propose amendments that Congress itself can control.
“But what if,” the skeptics ask, “the convention proposes a crazy or partisan amendment?”
What if? It takes 38 states to ratify an amendment—which means the vote of one house in 13 states could block it. There are 18 state legislatures controlled by the Democratic Party, and 27 state legislatures controlled by the Republicans. There is no serious chance that a partisan amendment would not find 13 states to veto it. It just can’t happen.
“But isn’t it possible?” the opponents insist.
Sure, there’s a chance. A tiny, tiny chance. Just like there’s a chance that an ambulance dispatched to save your 6-year-old might have an accident on the way and injure the driver. But no one would excuse the driver for refusing to drive because of that chance—we’d call it cowardice. Regardless of the tiny risk, there’s an almost certain harm to the 6-year-old if the driver stays home.
That’s the same choice facing legislatures across the country just now, in almost the same terms. Because the reality is, however bad things are, those of us over 50 (with jobs and some security) are going to do just fine. We, as a nation, are wrecking the climate. But it’s our kids who will suffer the consequences of that. We are driving up an endless debt—that they, not we, will pay. Social Security will be around for us. Healthcare may be expensive, but our nation will be able to afford it—for us. And any epidemic in childhood obesity is not a problem for grandpa or grandma. The inability of our government to act is a catastrophic problem for our kids, not for us. And the refusal to act to find a way out of this mess is yet another decision to spare us while taxing our kids.