The Middle Way

I am very grateful for Bradley Watson and Nick Dranias for their thoughtful comments on my Liberty Forum Essay on the problems of the national convention amendment process and how to fix them.  I also feel fortunate that these two responses were paired.  While both Watson and Dranias find aspects of my argument worthy of criticism, they would, I believe, have criticized one another far more strongly if they had been tasked with responding to one another.

Watson argues that I am too optimistic about the benefits of a reformed amendment process.  Dranias argues that I am too pessimistic about the current national convention amendment process.  Watson argues that, even if the amendment process is reformed, no significant improvements can happen until the country grows out of its progressive beliefs.  Dranias believes that significant benefits are possible now without any change in either the nation’s beliefs or the amendment process.  My position – that a reform of the national convention amendment process could produce significant benefits, even though it would not solve all of our problems – is right in the center.  The pairing of their two responses gives me the reasonable, middle position.

Let me begin with Bradley Watson’s arguments.  He claims that the problem with our polity is not constitutional provisions, but our political beliefs and values.  The people have drunk the cool aid of progressivism and significant reform will not happen until they change their views.

Watson interprets me as claiming that a reform of the constitutional amendment process could serve to largely address the excessive nationalism that has beset our country.  But that is not my position.  My view is merely that some of the excessive nationalism can be addressed by a reform of the noncongressional amendment process, not that all of it can be so addressed.  Certainly, the opportunity to pass constitutional amendments under a reformed amendment process cannot cure all of the political problems of a country that has to a significant extent embraced progressivism.

Where Watson and I disagree is that I believe the opportunity to pass constitution amendments under a reformed process is useful.  The country is not as persuaded of progressive beliefs as he suggests.  There are still many people who believe in limited government, either in general or at least for certain aspects of government.  The problem is that the national convention amendment process stacks the deck against reforms that would restrain the federal government.  My proposal would unstack it.

Would the reform I propose solve all of our problems?  No, but it would help.  There has been strong popular support for congressional term limits, a balanced budget amendment, and a line item veto.  These reforms exist at the state level.  Under a reformed noncongressional amendment process, they could also be enacted at the federal level.  Sometimes measures, such as provisions opposing racial preferences, that cannot be passed under one enactment process, can be passed under a different one.

Watson is skeptical, arguing that a balanced budget amendment is unlikely to pass because it would cut back on the benefits that people want from the government.  But the idea of balancing budgets is very popular, and people may support it even though they are told by opponents that their benefits will need to be restrained.

One way to understand the differences between my view and Watson’s is by analogy to the issue of public virtue.  At the time of the Founding, a common Antifederalist view was that good government was impossible if the people lacked public virtue.  By contrast, the Federalists argued that public virtue would often be lacking, but that government structure could make up for the deficiency.  If one substitutes political beliefs for public virtue, we can see that Watson’s view is akin to the Antifederalist one, holding that little can be accomplished until such beliefs are changed.  In contrast, I believe that government structure – in the form of a functioning constitutional amendment process – can sometimes make up for the deficiency in the public’s political beliefs.

Nick Dranias has a different perspective than Watson.  Dranias argues that the convention method of amending can and should be used now.  He maintains that the  concerns about the possibility of a runaway convention that I discuss, while having some basis, should not lead us to avoid using the convention method.

I have some sympathy for Dranias’s arguments.  Perhaps he is right that people should be willing to employ the national convention amendment process, despite the risks of a runaway convention.  After all, as he says, there are checks on what a runaway convention can enact, since three quarters of the states must ratify any amendment.  Moreover, he claims that, even if there is a risk of a bad amendment being enacted, there is also the problem of the “runaway convention” in Washington, D.C. that must be restrained.

But Dranias does not really address my argument.  My argument is that state legislatures are unwilling to apply for a convention in the requisite numbers because they fear a runaway convention, not that they should fear one.  Telling them that they should not be scared of such a convention is unlikely to have much effect.

Dranias also argues that limited conventions are constitutionally authorized, and therefore state legislatures that apply for a limited convention should not worry about a runaway convention.  I certainly agree with him that the Constitution’s original meaning allows limited conventions.  In fact, I have an article coming out this year in Constitutional Commentary that argues for precisely this result.

But this does not solve the problem.  That Dranias or I believe that the Constitution allows limited conventions does not mean that Congress, the convention, the courts, or anyone else will think so.  The risk therefore remains that applications for a limited convention will result in a runaway convention.

Further, while Dranias is right that it might be hard for the amendment proposed by a runaway convention to be ratified, that does not solve the problem.  The Congress might increase the chances of ratification by avoiding the state legislatures that called for the limited convention and sending the amendment to state conventions for ratification.  Moreover, the prospect of having to engage in a national fight to defeat a proposed amendment that they dislike is part of the reason why legislators fear a runaway convention.

In the end, while I gained much from reading the responses of Watson and Dranias, I remain convinced that the middle path I have advocated – where a reform of the constitutional amendment process would contribute to the good of the republic – is the right one.