The national political scene has reached an impasse. Democrats and Republicans, liberals and conservatives, are at loggerheads and cannot get things done. The constitutional structures in place act as stop devices that keep the two sides in check. Neither side feels comfortable inside this legal straitjacket.
When people can’t get what they want by working inside the system, they tend to blame the system. “Changing the system” becomes an obsessive battle cry that often opens the door for dangerous alternatives.
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In the present impasse, “changing the system” means messing with the Constitution, which is the supreme law of the land. Thus, some conservatives are proposing a constitutional convention (Con-Con) to enact changes that they assume will solve all the problems plaguing America today. They also assume the left will do nothing significant to oppose them. These are dangerous assumptions.
America has long been blessed with constitutional stability. The 235-year-old document has only been amended 27 times. Despite disastrous liberal interpretations (like Roe v. Wade), the Constitution remains an obstacle to many proposals that threaten the nation. Its slow and deliberative processes of change serve to calm passions and invite reflection.
Thus, changing the system should be done with great care because it profoundly impacts everything. Indeed, dictators always change constitutions because it transforms the whole legal system in one fell stroke.
Thus, the two sides are adopting opposing strategies for changing the system. The left wants to change the rules, allowing them to continue distorting the Constitution. The convention advocates want to use the system to amend it. Both will change America.
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Declaring a Constitutional Crisis
The left is triggering a constitutional crisis. Its dominant meme is the coming “threat to democracy.” The left claims the system does not work because the present institutions no longer represent the will of the people. The right is using the system to make it undemocratic and serve its goals. Among the institutions that need to be changed are the Electoral College, the Senate, the drawing of congressional districts, the selection of Supreme Court Justices and the use of the filibuster.
Of course, none of these institutions are undemocratic. They are the mechanisms by which Americans democratically agree to be governed. They involve duly elected officials or properly selected judges who carry out their functions according to the rules.
If the Republicans are guilty of anything, it is the adroit use of these institutions to their advantage. They played by the rules and won the game—much as liberals have done in the past.
In a rare declaration of incompetency, the left admits that they have been outsmarted and outmaneuvered, so it now plays the victim. When the right wins, it is not fair. Rather than change its tactics, however, the left wants to change the rules so it can implement its agenda.
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Hence, there is talk of abolishing the filibuster, packing the Supreme Court, eliminating the Electoral College and other measures that do not require constitutional amendments. Once the new rules are in place, the left can return to finding new rights, dark penumbra and “settled law” inside the Constitution that will take America leftward.
Calling a Constitutional Convention
On the other side, many conservatives want to change the system by calling a constitutional convention as allowed by the Constitution. This step involves invoking a never-used provision of Article V, which enables Congress to call a convention “on the application of the legislatures of two-thirds of the several states.” Seventeen states out of the needed 34 have made the call. Once convoked, the Con-Con is limited to introducing amendments to the Constitution.
The reasoning behind the move is to prevent the left from changing the rules and ruining the country. The idea is to shine light upon constitutional nuances and penumbra and leave the left with no room to interpret the document as it sees fit. The reformers hope to hardcode enough systemic changes into the Constitution to prevent leftist shenanigans.
The objectives are reasonable considering past judicial activism that allowed liberal judges to legislate undemocratically from the bench for many years. The convention callers hope to tame an increasingly tyrannical federal government and runaway spending. The focus will be on reducing government power and maintaining checks and balances. Other proposals call for term limits, fortifying Second Amendment rights and a wish list of measures to blunt the leftist war on law and order.
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The Problems of a Constitutional Convention
Many do not see the problems that could arise from a constitutional convention. Indeed, some imagine a mythical convention like that of the Framers in 1787, who cooperated to produce a final document. They think the mere act of calling the convention will bring forth a consensus and a similar unexpected outcome.
Such assumptions do not correspond to the present impasse. A successful convention presupposes cooperation that must extend after the event. While many amendments can be proposed at the convention, they must still be approved by 34 state legislatures to be enshrined as amendments. In a highly polarized America, such a feat will not be easy. If done by the rule book, the final result might only result in transferring the impasse from one forum to another.
In addition, no rulebook exists about how to run a constitutional convention beyond the stark Article V provision. Conservatives cannot expect the left to be inactive in the rule-making process. Liberals will engage in the discussion about who attends, what is discussed and the final results. Under such conditions, there is no guarantee of the desired outcome.
Finally, some constitutional conventions have proposed changes that often go beyond the original intention. The danger of a runaway convention is always very real. An extreme leftist faction, for example, recently ran away with a constitutional convention in Chile that was fortunately defeated in a referendum. The original American Convention in 1787 started as a meeting to amend the Articles of Confederation and produced an entirely new document.
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Such an eventuality is especially possible when the agenda is vague and emotions are high. The temptation to scrap the system entirely, regardless of the rules, is always present in such circumstances.
The Nature of Law and the Convention
However, the real problem of a constitutional convention is the vision of law of those who will meet. If the legal framework reflects liberalism (and it will), the outcome will be stacked against the right. Thus, the debate will be limited to a discussion of legal mechanisms that secure individual rights, both real and imagined. They will not discuss moral issues that affect the nation.
The debate during a constitutional convention must address the problems at their root in the nature of law. Two visions of law are at issue.
The first is the present legal system dominated by liberalism. Its advocates hold law is a morally neutral instrument for securing ever-greater freedom for the individual against the encroachments of others. The law’s object is the progressive satisfaction of individual desires and freedoms by removing the restraints of tradition, morals and social obligations.
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Inside this system, there is no right or wrong but only rules of cooperation and contracts. As society decays, these rules are increasingly turned against those who protest against moral evils and thus inhibit “freedom.” This law can be more easily manipulated since it evolves to allow ever-more “freedom.”
The traditional notion of constitutional law found in America’s Common Law origins holds a contrary view. Its advocates maintain that law does not exist to facilitate personal gratification but virtuous life in common. Law is thus defined as the reasoned ordering of the common good. It is firmly anchored on universal notions of right and wrong found in natural law. Its object is the flourishing of not only the individual but, above all, an ordered political community.
Fighting on the Wrong Battlefield
Thus, any effective constitutional convention must revolve around the solid legal principles of the traditional school and not the morally neutral structures of the first one. A convention based on the prevailing liberal legal premises will force conservatives to fight on the ground of the left’s choosing.
America needs law focusing on the common good and universally held notions of right and wrong. Indeed, remnants of this law existed at the time of the Constitution’s Framing.
Without recognition of a natural law theory, Con-Con promoters will not have the means to prevail. On the other hand, a natural law platform, when well-formulated, frightens the left and energizes those who crave moral certainties.
Such a transformation will be difficult since Enlightenment thinkers and nineteenth-century positivist scholars reject these traditional notions of law. Fortunately, natural law theory is enjoying a revival among conservatives searching for answers amid a system in decay.
Until conservatives summon the courage to adopt such daring legal notions, it is best not to call a constitutional convention. Too much is at stake. The Constitution maintains remnants of the traditional order that seriously impede the left’s action. The right gains much more from keeping it as is than the left.
Meanwhile, conservatives should pursue a return to legal order with all diligence. The nation’s future depends upon it.
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