Bad Conservative Ideas

Bob Novak is always an interesting read, and he has excellent insights into what's going on in Republican and conservative circles. Today he writes about an effort by some conservatives, including Chuck Donovan of the Family Research Council, to convene a new constitutional convention for the purpose of approving an amendment to protect traditional marriage:

Constitutional convention?
By Robert Novak
Jun 24, 2006

WASHINGTON, D.C. -- Supporters of a constitutional amendment to keep the courts from legalizing homosexual marriage, stunned by poor support in the recent Senate vote, are beginning a campaign for a constitutional convention.

The provision of the Constitution's Article V requiring such a convention if called by two-thirds of the state legislatures has never been used. Fear of throwing the Constitution open to general amendment has overridden support for specific issues. However, key advocates of barring gay marriages believe the constitutional convention strategy will keep the issue alive.

A recent memo circulated within the anti-gay marriage coalition lists Princeton Professor Robby George, Tony Perkins and Chuck Donovan of the Family Research Council, and conservative financial consultant Frank Cannon as favoring the strategy.

However well-intentioned, this is at best unwise, and at worst downright dangerous. Conservatives have discussed the potential for a constitutional convention in the past - for everything from abortion to a balanced budget amendment. The idea has always foundered before touching upon the question of practicality. The fear has been that once a constitutional convention is convened, it's unclear whether one can limit what amendments emerge from it. (Relevant constitutional text is here.)

The Heritage Foundation argued for a constitutional convention for the balanced budget amendment in 1988, and contended that this fear was unfounded:

Because no convention under Article V has ever been held, the prospect of a constitutional convention is prompting understandable but unfounded fears. Critics have argued that the convention method of amendment is an untried and dangerous process and that a convention could run away beyond its mandate and rewrite the entire Constitution perhaps even repealing the Bill of Rights. These worries, however, are based on a misperception of the nature of an Article V convention and of the safeguards built into the amendment process.

A wide variety of authorities, including a special study committee of the American Bar Association, point out that a convention legally can be limited to a particular subject. These limitations can be enforced by Congress or the courts. A convention also would be constrained by a range of political factors, including the election of its delegates.

This argument notwithstanding, I think conservatives ought to be concerned about the possible ramifications of starting this process. What other proposed amendments might some states try to make part of the convention, or might other activists pursue? There are lots of ideas that sound good and would give conservatives fits. Some on the Left are calling for a privacy amendment. It could protect an absolute right to an abortion, and sanction drug use, as well as undercut efforts in the War on Terror. And what if only a few states directed their delegates to the convention to pursue such an amendment?

No, I think that this is an idea that will not get very far.

Update: I note via Real Clear Politics that Brian Wilson has already written a post in support of this effort. While I agree with his goal, I think that the method is unlikey to succeed - for the reasons I lay out above.

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