Con-Con Movement Returns: Some Proponents of a Federal Constitutional Amendment to Protect Traditional Marriage Are Considering Calling for a Dangerous Constitutional Convention to Accomplish Their Goal

Article excerpt

They're baaack--those pesky advocates of a constitutional convention. Following defeat of a federal constitutional amendment in the U.S. Senate to define marriage exclusively as a union of one man and one woman, talk began to circulate favoring a constitutional convention to accomplish the task. Leading the charge by convention advocates are Princeton Professor Robby George, Chuck Donovan of the Family Research Council, Frank Cannon, and Tony Perkins. Most convention proponents operate in oblivion of the dangers inherent in the convention process. Their focus is upon the remedy they seek for the perceived need, be it a marriage amendment, a balanced federal budget, a ban on flag burning, legislative reapportionment, or other items which have appeared on the shopping list of convention advocates over the decades.

Article V of the Constitution contains the procedure for amending that document: "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."

Perils of a Constitutional Convention

Amendments are proposed either by Congress or by a convention called for that purpose by the action of two-thirds (34) of the legislatures of the states. The danger of using the latter process is that there is no effective way to control the convention once it begins its work. If a convention were called for the sole and exclusive purpose of proposing a definition-of-marriage amendment, the convention would be able to propose any kind and number of amendments it might choose; it could also utterly ignore the marriage amendment issue. Any topic would be on the table. It could change the republic into a monarchy, ridiculous as that suggestion sounds. It could formally place the United States under the total power of the UN. It could abolish the states. The only limits on the convention are in the minds of the delegates--self-restraint, which is no restraint at all. The point is universally lost on single-issue convention seekers, who fail to look, and therefore cannot see, beyond their own limited agendas.

A majority of the judges and scholars who have opined on the subject have declared that restraints and limitations contained in the resolutions of state legislatures which apply to Congress to call a convention are unenforceable and of no effect whatever. A legislative application for a convention for the sole purpose of securing a marriage amendment is treated as an application without limitation, thus ignoring the marriage amendment issue. The late Chief Justice of the United States, Warren Burger, wrote in a private letter in 1988:

   I have also repeatedly given my opinion that there
   is no effective way to limit or muzzle the actions of
   a Constitutional Convention. The Convention could
   make its own rules and set its own agenda. Congress
   might try to limit the Convention to one amendment or
   to one issue, but there is no way to assure that the Convention
   would obey. After a Convention is convened, it
   will be too late to stop the Convention if we don't like
   its agenda.... A new Convention could plunge our Nation
   into constitutional confusion and confrontation at
   every turn, with no assurance that focus would be on
   the subjects needing attention. I have discouraged the
   idea of a Constitutional Convention, and I am glad to see
   states rescinding their previous resolutions requesting a
   Convention. In these [constitutional] Bicentennial years,
   we should be celebrating [the republic's] long life, not
   challenging its very existence.

Of like opinion was the late Associate Justice of the Supreme Court Arthur Goldberg, writing an op-ed piece for the Miami Herald in 1986:

   A few people have asked, "Why not another constitutional
   convention? …