Observations From the Simulated Article V Convention
by James Kallinger
Recently, the Convention of States Foundation convened a meeting of 103 commissioners from 49 states in Colonial Williamsburg, Virginia to participate in an important and valuable educational exercise. These state delegates were gathered to simulate an Article V Convention to propose amendments to the US Constitution. The purpose of this assembly was to test the efficacy of an interstate convention process and to observe the interactions among and cooperation between the commissioners in their quest to remedy and restore the balance of power between the national government and the states that is enshrined in our Constitution.
The commissioners replicated a procedure that the states frequently used during the formation of our republic to gather and discuss solutions to the problems they faced. The authority for this type of meeting is found in Article V of the US Constitution and is a tool the Founders gave the states to put a check on the national government they highly suspected would eventually grow, consolidating its power and control over the states.
Participants were brought in from across the nation, including 78 sitting state legislators, eight former state legislators, and 17 policy experts and opinion leaders. Even though this was a simulated event, all the commissioners took this exercise very seriously, and they wanted to find out if the process worked as they anticipated. Would the commissioners respect the limits of the call? Would they follow the rules of the convention? Most importantly, could the convention propose amendments that would effectively rein in our runaway national government?
From my vantage point as a commissioner and former state legislator from Florida, I can say that when the convention adjourned, it had answered the first two questions with a resounding “Yes.” However, the convention fell somewhat short on the last one. While the amendments that passed would address some of the abuses of the national government, more comprehensive and impactful alternatives were overlooked.
With a compressed timeframe of only 48 hours to introduce, debate, amend, and vote out the proposed amendments, it was not possible to fully scrutinize the propositions with the thorough deliberation and wordsmithing needed to ensure their clarity and efficacy. Because any amendments delivered to the several states for their approval can no longer be revised at that point, they need to be exceedingly clear and concise to both gain ratification by the states and effect the intended reforms.
The commissioners had plenty of opportunity to present their proposed amendments both prior to the actual convention and during committee hearings. Some proposed amendments were concise and vigorous in their potential to restrain the errant national government, but were not even heard in committee; while other, potentially less impactful proposals, made it through the process. One of the amendments, for example, had a narrow, regional application. Affecting fewer than half of the states, this amendment would be unlikely to gain the broad support needed for ratification. At a real convention, commissioners need to always have the “end game”—prospects for ratification—in view when developing and voting out their amendments.
Most of the commissioners present at the simulated convention were sitting state legislators. These honorable and well-meaning elected public servants, with all the right intentions, basically formed a legislative body that is naturally more attuned to dealing with public policy matters than with issues of principled governance. Even in a simulated event, removing the politics from a gathering of commissioners is virtually impossible. Though all participants bring their personal vices and prejudices to the process, elected officials can’t help but bring their political concerns into the discussion as well: campaign considerations, party agendas, and associated foibles. These realities can potentially become political squabbles resulting in amendments of no substance or hyper-partisan in composition, thereby greatly diminishing the chances of securing ratification from 3/4ths of the states.
For commissioners who do not hold elected office, deliberations on principled governance are untainted by party loyalties and therefore have greater potential to be robust, productive, and non-partisan. Of course, there most likely will be compromise, but the outcome will be the most authoritative amendments able to effectively restrict the national government with the greatest chance of getting ratified.
When the convention meets, it will be a unique opportunity that cannot be squandered and it is crucial that it produces at least one substantial, meaningful, ratified amendment. The Article V Convention is the states’ most potent tool to constrain an out-of-control national power. Failure to deliver will greatly diminish the prospects of holding a future convention.
The Convention of States Foundation deserves much credit and should be commended for investing in a simulated Article V Convention and allowing us the opportunity to observe and learn from the experience. The valuable lessons gleaned can be applied to the much-anticipated Article V Convention.
The simulation demonstrated that the Article V process works and that the states clearly are prepared and resolved to assert their constitutional right to self-determination over an increasingly overzealous and centralized national government.
It is valuable to study the work product of the simulation, but this exercise demonstrates that there is a great deal more to consider as states prepare for the real thing. Will principle and altruism supersede politics and ambition? Can we keep our republic? Only if we are willing to learn all the lessons of the simulation and not just point to it as proof that the real convention won’t “run away.”
James Kallinger is the President of the National Association of Former State Legislators and a delegate to the Article V Convention Simulation sponsored by the Convention of States Foundation in August. To learn more about NAFSL, please visit https://www.nafsl.org.
Article V News
On September 19, the U.S. House Judiciary Committee held a hearing Examining Proposed Constitutional Amendments, though it appears the committee is more interested in finding justifications for heading off a convention than calling it. The complete hearing may be viewed here.
Federal Fiscal Sustainability Foundation board member Barry Poulson and Ohio State University professor emeritus Mike Rose penned an opinion piece advocating for a fiscal responsibility amendment that ran in the Washington Times and the Boston Herald.
Harvard Law’s Stephen Sachs opines on the viability of the Equal Rights Amendment and the constitutionality of sunset clauses on proposed amendments in Reason.
State Senator Mike McKay (R-MD) reflects on his experiences as a delegate to the Convention of States Foundation’s simulated convention in the Herald-Mail.
California passed an application for an Article V Convention to propose a series of gun control amendments that have heretofore been deemed unconstitutional when attempted legislatively. SJR 7 passed on a near party-line vote in both chambers.
A Convention of States Project application has been referred to the Ohio House Government Oversight Committee
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