In Spotsylvania County, the Board of Supervisors is calling for Virginia to support a gathering of state governments to amend the Constitution. But legal scholars see serious problems with the idea.
Interesting things are afoot in the municipal governments of central Virginia. Last month, the Spotsylvania County Board of Supervisors passed a resolution to encourage the Virginia state legislature to support a convention of states. Before we go on, let’s begin by explaining what that is.
There are two methods by which the US Constitution can be altered. The first requires a proposal by Congress with two-thirds approval in both houses. Although it has never been done, Article V permits a second method, in which Congress can call a “convention of states” to amend the Constitution, following the passage of resolutions from two thirds of the states.
Today, such a convention is closer to reality than it ever has been, as a result of efforts from groups like Convention of States.
In Spotsylvania County, Supervisor David Ross initiated the resolution, which passed in a 5-2 vote by the Spotsylvania Board of Supervisors on February 12.
“I was contacted by two gentlemen [John Dahmen and Trevor Wells from Convention of States Virginia] who have dedicated a good amount of time considering this subject and wanted the Spotsy Board of Supervisors to send a resolution to the General Assembly encouraging their support of calling [a convention],” Ross said.
Ross said his inspiration for calling a convention of states stems from a desire to limit the spending of the federal government.
“I believe we need a balanced budget amendment to the Constitution – that our spending / debt by both parties is out of control and that it is unfair to our children to pass our spending for them to repay and or deal with,” he said.
Ross also advocated for a constitutional amendment pertaining to term limits.
“No one should be able to make a career out of being a representative,” he added.
Mark Meckler, who co-founded the Tea Party Patriots before parting ways with the organization in 2012, is the current president of Convention of States Action, the parent organization of Convention of States Virginia. Meckler made clear that COS isn’t advocating for a total rewrite of the Constitution, saying that doing so “would be a horrible dangerous idea.”
Rather, he said the organization focuses on amendments that cover three subject areas: fiscal restraint, federal term limits, and the scope and jurisdiction of the federal government.
“The American public understands that we have to live within our means as individuals,” Meckler said. “The federal government needs to do the same.”
However, David Super, a professor of law at Georgetown University, worries that there’s nothing to stop a convention of states from going beyond the measures outlined by groups like Convention of States Action.
“I think it is something that looks scarier and scarier the closer you look at it,” Super said. “Open up the constitution in a convention, and all of the things that we take for granted become imperiled. The First Amendment becomes imperiled, the Second Amendment — many of our notions of equality and democracy become open for manipulation.”
Meckler believes that the federal courts have undue influence in dictating American policy.
“The federal government is involved in many areas that were never supposed to be in the constitution,” he said. “The constitution lists enumerated powers. The problem is that the courts have expanded interpretation of those powers beyond what founders intended.”
Meckler dismissed the idea that civil liberties expanded by the federal courts could be revoked if handed back to the states, in the event of a convention of states passing a constitutional amendment that reduced the influence of the judicial branch. He cited his Jewish identity as credence for being particularly sensitive of such threats.
“I’ve never heard anybody talk about [overturning these decisions] except for people on the left trying to scare,” he said. “This is fear-mongering by people who are scared of regular people having power.”
David Super disagrees.
“Both President Trump and Justice Thomas have suggested recently that politicians should have more ability to sue journalists over unfavorable stories,” he said. “That suggests there could be strong support for limiting press freedom in an Article V convention. On the other side, if a mass school shooting occurred while the convention was meeting, I can easily imagine it proposing to rewrite or eliminate the Second Amendment.”
According to Meckler, 14 of the needed 34 states have passed resolutions calling for a convention of states. His group hopes resolutions like the one passed in Spotsylvania will help push Virginia toward joining that number. But Super, and other legal scholars on both sides of the political aisle, see too many potential problems with the plan.
“The Constitution is our most fundamental source of liberties,” Super said. “Prudent people should not run such a risk.”