As other commentators here on Redstate have suggested primarily in the area of same sex marriage, but also other areas, the solution to Leftist over-reach of the Federal government and the Leftist agenda, states need to petition Congress to call a Constitutional Convention to propose an amendment dealing with the issue. Although these efforts should be lauded, one suspects in the end they are exercises in futility. And a waste of time.
Article V deals with the amendment process. One mechanism is for the states to petition Congress to call for a convention of the states. In the history of the United States, this method has never been used to amend the Constitution. Instead, the alternative method- the Congressional approach- has been used for all 27 amendments. If one remembers their history, the first ten amendments- collectively known as the Bill of Rights- was one of the first orders of business of the First Congress. As part of the Constitutional ratification process, many leery states demanded that these Bill of Rights, absent in the text of the Constitution, be included. Amid promises by those in favor of ratification (the Federalists), Congress took up the issue and the Bill of Rights was quickly passed, submitted to the 13 original states, and ratified rather quickly.
We can go through the history of each and every amendment and we will find that in no case was any convention called, nor was any amendment proposed as the direct result of a states convention. Article V states that if two-thirds of the states petition Congress for a convention, then Congress shall call a convention. Some have mentioned that Congress would be reluctant to call a convention, but the wording of Article V indicates that they would have no choice. This method would require the coordination of 34 states to petition Congress.
Let’s use the issue of same sex marriage as the impetus to call for a convention. Then let’s leave out the states that have adopted gay marriage either by statute or by state constitutional amendment- 10 states in all. That means that 34 out of 40 states would have to petition Congress. However, 26 states already have gay marriage by judicial fiat. At a minimum, a firm seven of these states would be highly unlikely to join the petition process- California, Connecticut, Massachusetts, New Jersey, Oregon, Pennsylvania, and Wisconsin. Assuming such, you are now down to 33 states which is below the two-thirds threshold. Already one can see the futility of this exercise.
However, let’s carry through this mental exercise and assume the other states that have gay marriage by court decree plus those that ban gay marriage hold together as a bloc and they pick off one of those more liberal states listed above. In other words, they reach the magic number of 34 to call a convention of the states. And let’s further assume that they stick to the issue at hand- gay marriage. When a convention of the states is called, it is all 50 states- just not those that petitioned Congress. That means 16 other states would attend and to suggest that they would not attempt to scuttle or water down any proposed amendment would be a denial of reality.
As mentioned, no amendment eventually ratified or proposed has ever come about by this process. Instead, it was Congress that proposed, passed, then sent to the states for ratification any amendment proposal. The Constitution’s Article V is silent on the dynamics of a states convention, stating only that it is an option. That option was included to bypass Congress if the will of the electorate was being deliberately blocked by Congress. Usually what happens is that states will pass resolutions proposing a convention for a particular purpose and Congress will usually act upon those resolutions before it reaches the two-thirds point. The reason is simple and one that is valid in this case: fear that such a convention will stray from its intended purpose.
Once called, a convention of the states may specify that, for instance, the issue is one of addressing same sex marriage. However, since there has never been such a convention, it is quite possible that despite specification to the issue at hand a state may use the opportunity to address and propose other amendments that have nothing to do with that issue at hand. For example, let’s again assume the nearly impossible happens and a convention is called. There is nothing to stop a state like California to compromise on wording regarding the gay marriage issue (thus, they get California’s vote) IF another state adopts a California suggested amendment to overturn Citizens United or any other Supreme Court decision with which the Left may disagree. I can almost guarantee that in such an instance one can garner 38 states to overturn Citizens United, but NOT 38 in the case of gay marriage.
Where Congress has acted and proposed amendments and then passed those onto the states for ratification are those instances where petitions from the states are approaching the two-thirds threshold. Many, many proposed constitutional amendments have been proposed only to die in committee or never reach a floor vote in the House. Those that do generally die in the Senate. And remember it takes two-thirds of all Representatives and two-thirds of all Senators to pass on a proposed amendment to the states for ratification. It is clearly easier to achieve this in the House than in the Senate. When the Senate has acted is when the number of petitions is nearing that two-thirds threshold. That happens because of a fear that a state convention will be broadened to issues beyond gay marriage. In fact, this is precisely what happened with the 17th Amendment- the direct election of Senators.
In 1893, Nebraska petitioned the Congress for a convention to address the direct election of Senators. After a period of eight years, several other states followed suit. This was the result of a populist reformist push in the earlier part of the 20th century. Despite this groundswell of support at the state level, Congress refused to move on the issue. When incumbent Senators opposed to the direct election of Senators lost in the 1910 midterm elections, it was a wake up call and the Senate eventually proposed and approved the 17th Amendment. The rest is history.
In order for those dynamics to happen today with respect to same sex marriage, it would have to mirror those in 1910. There would have to be a tremendous groundswell of support at the state level and a sweeping of pro-gay marriage legislators out of Congress. Realistically, I just do not see it. Nor do I see getting 34 states to propose a convention to Congress.
While anyone is certainly free to pursue this method- after all, our Founders included it for a reason- in the end it will be as futile as Don Quixote fighting the windmills. If we can get, at current, only 22 states to call for a convention for an amendment whose sole purpose would be a balanced federal budget, then calling a gay marriage amendment convention surely is tilting at windmills. Time and effort can be better spent elsewhere.