Instapundit has been discussing the calls for a constitutional convention called by the states under Article V. As a thought experiment, put aside all of the speculation about how the delegates for such a convention might be chosen, and assume that, however it comes together, the result of the convention—an amendments package or a rewrite of the whole constitution—accurately reflects the opinions of a majority of the population. That is a scary thought for people who value liberty.
There seems to be little doubt that Americans like their big government, as we seemed to learn in 2012. How can anyone think that a new constitution, if it accurately reflected the will of the majority, would be better than the one we have now? The right to bear arms would be toast, and the freedom of speech that resulted from new wordsmithing would surely be less absolute than the First Amendment. No other country protects speech as fully as the U.S.; it is very likely that, taking the lead of other Western countries, some provision excepting “hate speech” or “racism” or “denying historical facts such as the Holocaust” or “corporations contributing money to political campaigns” would end up in the constitution. Such a provision, which a large majority of the low-information (and low-principles) populace would see as innocuous, would of course be used by the government to persecute conservative and pro-liberty elements of the population from day one after its enactment.
Less perniciously, but still with disastrous effect, a new constitution would, no doubt, include more “positive” rights like the “right” to health care, education, or a job—just like supposedly “progressive” constitutions of other countries include. The beauty of the U.S. constitution is that it includes almost only “negative” rights—rights to be free from certain forms of government interference—as opposed to positive rights bestowed upon citizens. This makes the current constitution a libertarian’s dream: pretty much the only positive individual rights covered in the original text and its amendments are the right to Privileges and Immunities, right to petition the government for a redress of grievances, and the right to vote.
The country’s balance of power could be altered. The need to secure ratification by three-quarters of states would prevent small-population states from being totally left behind, but a clever majority could build in mechanisms—in the name of “fairness”—to increase the proportion of representation allocated to larger-population states and cities. In an extreme scenario, delegates from 45 states could gang up on, for example, tiny red Wyoming, Idaho, Montana, North Dakota, and South Dakota to dilute their power without much regard for the long-term consequences. No doubt the left would try this.
But a document that reflects the will of the majority is probably the best-case scenario. More likely, a constitutional convention would be hijacked by enemies of liberty, like, oh, every other lever in our national politics and culture has been over the past century.
Even if we accept arguendo that a majority of citizens, who for example do not have any interest in owning a firearm, would nonetheless understand the value of the Second Amendment both for the positive externality that it creates and for the check on government power that it ensures, there is little reason for optimism that they would be able to act on this principle at a constitutional convention. The left is always better at mobilizing its foot soldiers than the right, and at shaming the crowd with cries of “what about the children,” “you are racist,” “evil corporations control our politics,” and similar emotionally-charged harangues that have dominated our popular discourse for the last 20 years.
No doubt the attendees at any constitutional convention would be composed disproportionately of union activists, government bureaucrats, college professors and students, and other special interest groups that the left could marshal. When it came time for the result to be ratified by the states, we would see the same mobilization by the left, egged on by the media, to bring its voters, alive and dead, to vote early and often for what would no doubt be a dastardly document.
Of course the need to attain ratification by three-quarters of the states would be a challenge, but, since there is no time limit for this to be achieved, one could easily imagine the left picking off one state at a time, taking over state legislatures through Soros-funded electioneering, bullying, state court packing, voter fraud, media takeovers, changing the rules, and whatever other means are necessary to get to 38. Our culture wars over the past half-century suggest that the leftist forces seeking to fundamentally transform our country are better funded, organized, and motivated—even if they don’t represent a majority—than those who seek to maintain liberty.
Whether our institutions are failures because of their lack of fidelity to the constitution or the constitution itself is a failure because it hasn’t been strong enough to hold up is a moot debate, so it’s tempting to try to rectify the problem at the putative source. But this thinking is a fallacy because we’d be left with the same culture—and a far less liberty-minded constitution to boot.