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MASSON: The U.S. doesn't need a constitutional convention

April 9, 2016

Masson
Relatively little noted in the Sturm und Drang of this year’s Indiana General Assembly was the Legislature’s adoption of SJR 14, a resolution whereby the state of Indiana is calling for a constitutional convention under Article V of the U.S. Constitution.

The federal Constitution has two methods for proposing amendments. One is through Congress, which is how all our current amendments have been adopted. The other is that two-thirds of the states call for such a convention.

Indiana’s resolution purports to limit such a convention to “amendments … that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and members of Congress.” Just money and power, then? Thank goodness the Indiana Legislature only wants us to tinker around the edges of our federal form of government.

My first critique, obviously, is that limiting the convention to the federal government’s relationship to money and power is really no limitation at all. Second, even if it were, a quick look at the history of our current Constitution shows that, once you open the can of worms, limitations on delegates to the Constitutional Convention would not bind them. The text of our current Constitution imposes no such limitation on state-called conventions and does not have language that contemplates states themselves limiting the convention’s authority. Under Article V, states either call for a convention or they do not.

From 1781 to 1789, the United States was governed by the Articles of Confederation. Those articles were characterized by a weak central government. Under the articles, the federal government was not strong enough to establish a sound financial system, regulate trade, enforce treaties, or go to war when needed.

In other words, it was not strong enough where money and power were concerned. States sent delegates to a convention to amend the articles. Most placed limiting instructions on their delegates. Rather than producing amendments that complied with state-imposed limitations on the process, the delegates went beyond their mandate, proposed an entirely new Constitution, and altered the rules for amending the Articles of Confederation to make it easier to adopt the newly proposed Constitution.

The restrictions the General Assembly has sought to impose on a convention are illusory. And, while things worked out very well in 1787, there is no particular reason to believe the delegates we would send to a modern convention would have the wisdom of the framers. As much as I hate unduly idolizing the past and believing ourselves to be fallen—preferring instead to believe we can meet and exceed the works of our ancestors—I fear that we are not now, to badly paraphrase Lord Tennyson, that wisdom which in old days formed a more perfect union.

The problem is not that the system lacks the means by which we can accomplish desired goals. The system has performed well over the last couple of centuries. Rather, the goals are ill-defined and the people involved inadequate to the task. The solution is to clearly define the problems and solutions, and then, if necessary, start electing new representatives to Congress.

The General Assembly should settle upon language it would like to see in a constitutional amendment and then ask our members of Congress to introduce it. Opening a constitutional convention first and hoping such a body comes up with useful, non-destructive proposals is an unnecessary and unwarranted leap of faith.•

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Masson is a Lafayette attorney, author of Masson’s Blog and former counsel for the Legislative Services Agency. Send comments on this column to ibjedit@ibj.com.

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