Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [137]
Now, of course, the only example of a convention in our history is also an example of a convention that exceeded the limits of its call. And that’s precisely what concerns many people about the idea of calling for a convention: How could we be sure that the convention didn’t propose radical changes to our Constitution? What would stop fundamentalists from repealing the separation of church and state? Or antiabortionists from reversing Roe v. Wade? Or crazies on the Left mandating government ownership of the Internet?
But let’s keep this argument clear.
First, the fact that the limits on a call for a convention have been exceeded does not show that a call for a limited convention is invalid, any more than the fact that banks have been robbed shows that bank managers have no right to lock their vaults. To the contrary: The call for a limited convention could be perfectly valid. The invalid part is the exceeding of those limits. The question of the proper remedy for invalidity is distinct from the question of whether the line drawn is valid. Thus, as the historical practice shows, states, in my view, are perfectly entitled to narrow the scope of issues they’d like a convention to consider, and Congress, in my view, is perfectly entitled to specify the scope of the convention’s work consistent with the proper limits expressed by states, even if no one can control what actual amendments a convention proposes.
Second, the same tradition that permits the calls for a convention to be limited also shows that conventions sometimes ignore those limits. But the critical question is this: With what consequence? As our first constitutional convention plainly recognized, because it had exceeded the scope of its authority, it had no authority to change anything on the basis of its proposed Constitution alone.21 Instead, as James Wilson put it, the Framers conceived of themselves as “authorized to conclude nothing, but… at liberty to propose anything.”22 James Madison made the same point in Federalist 40. Indeed, the anti-Federalists (who opposed the Constitution) worked hard to invalidate the work of the convention by arguing that the convention had no right to propose a constitution because that exceeded the mandate of the convention. The anti-Federalists failed. Again, as Madison and others responded, the convention didn’t rest upon any “right” to propose anything. They merely asked that the Congress refer their proposal to state conventions to be considered and ratified if the states so chose.
That is precisely the same “danger” that we would face today. (For we have never seen a “runaway” convention that purported actually to change the Constitution on its own.) A convention called for the purpose of considering amendments to restore the independence of Congress, but that instead proposed an amendment to abolish the Electoral College, would have no right to demand that Congress do anything with its work. Congress would be free, of course, to take up the amendment itself. But it would also be free to ignore it.
The point, as Paul Weber and Barbara Perry convincingly argue, is that we need to think about this “danger” in political terms, not legal terms.23 The question is, How likely is it that the proposals of a runaway convention—a convention that expressly ignored limitations called for by the very states that had called for the convention—would nonetheless be ratified by three-fourths of the states?
It is not likely. At all. But if it happens, then it would happen only because that runaway convention had come up with the same sort of world-changing brilliance that our Framers did. And if it did, then why wouldn’t we want the states to ratify it? Or put more strongly: If an “illegal proposal” were so strong as to overcome its own illegitimacy, and rally the support of thirty-eight