Federal Constitutional Convention could undermine liberties

There are two ways to amend the United States Constitution: a vote by two-thirds of both Houses of Congress or a Constitutional Convention (aka an Article V Convention). The resolution currently being considered at the state Legislature asks Congress to call for an Article V Convention to propose amendments to the U.S. Constitution, in order to limit the influence of money in the electoral process (Senate Concurrent Resolution 76). It is well meaning, but its passage — and the passage of similar resolutions in other states — could wreak havoc on the constitutional protections we all hold dear, including those in the Bill of Rights.

Put simply, this resolution could undermine hard-won constitutional liberties.

The Convention process has never been used for adopting constitutional amendments, and for good reason. First among them is that even if every state in the union passes a resolution saying “this Convention will only focus on campaign finance reform,” the Convention could, in theory, do whatever it wants anyway. This includes making changes that erode the rights of privacy, free speech, equal protection, and the constitutional rules that determine the very structure of our government — and there would be no clear way to prevent this.

But don’t just take our word for it. Former U.S. Supreme Court Justice Arthur Goldberg, appointed by President John F. Kennedy, wrote “there is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.”

And this is not a partisan issue. Top lawyers across the political spectrum have agreed about the dangers of a federal Constitutional Convention. Former chief justice of the U.S. Supreme Court, Warren Burger, appointed by President Richard Nixon, wrote: “[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the Convention would obey.”

The proposed Convention could open a Pandora’s box of opportunity for opponents of civil rights. Those rights were hard won through years of struggle on the streets and in the courts. There just is no guarantee that a Convention could be legally required to only consider campaign finance reform. And if it cannot be so limited, a runaway Convention could cement into federal law the anti-immigrant, anti-Muslim, anti-LGBT, anti-choice, anti-free speech policies currently being urged by some officials at the highest levels.

And in the absence of standards for a Convention (and indeed, there are none), there is no way to assure, among other things that: delegates are fairly representative; the rules governing conduct of the Convention are fair; the Convention confine itself to the subject or subjects of the call; and the Convention does not other infringe on civil rights and civil liberties.

The ACLU supports a comprehensive and meaningful system of public financing of elections. But there are ways to achieve that without dangling our Constitution over a shredder.

Joshua Wisch is executive director of the ACLU of Hawaii.