Bill Description: Senate Concurrent Resolution 112 would add Idaho to the list of states seeking to convene an Article V Convention to amend the U.S. Constitution.

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NOTE: The Convention of States Resolution contains five "whereas" clauses, which lay out the arguments for an Article V Convention. Several of these clauses could just as easily be used to argue against this untested process. 

The Resolution says state legislators should serve as "guardians of liberty" and "it is the solemn duty of the state to protect the liberty of our people. …" These statements are broadly true. But guarding and protecting liberty may well require exercising the courage necessary to oppose "silver bullet" type thinking and reject experiments that could undermine more than two centuries of constitutional governance. 

Another "whereas" clause observes, correctly, that "the federal government has ceased to function under a proper interpretation of the Constitution of the United States." This recognition underpins one of the strongest arguments against an Article V Convention: The federal government has ignored the Constitution practically since its ratification; why would amending it curb this misbehavior?

There are serious concerns with the structure and limits that would exist for an Article V Convention, as the Constitution lacks any specific direction. Under Robert's Rules of Order or Mason's Manual of Legislative Procedure, the convention could suspend its own rules and go well beyond the scope intended by the state legislatures that called for it. Should this occur, it is unclear what role the U.S. Supreme Court could or would play, as it is not explicitly constitutionally empowered to intervene in an Article V Convention. (We also don't know what the political makeup or even the size of the court may be by the time an Article V Convention takes place.) 

Even under the best of procedural circumstances, it’s unlikely that a convention would achieve the aspirational goals as called for in this resolution — "impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress."  

Any "fiscal restraints" imposed by a constitutional amendment will inevitably include exploitable exceptions that render them meaningless. An exception for war, for example, would have been interpreted to allow funding for the "war on poverty" and "war on terror," among other pretexts. For at least the last century, we have seen the U.S. Supreme Court twist the words and meaning of the Constitution beyond recognition to permit the unchecked growth of the federal government. It is reasonable to assume this trend would continue under an amended Constitution. 

The proposal for term limits has its own problems. To start with, it serves more to limit the people than the government by forbidding them from reelecting the statesmen who best represent them. 

There is also the very real risk that the hope of a future Article V Convention will continue to bleed time and resources away from more practical and immediate solutions to curtail federal malfeasance. States have far more power than they exercise. None, however, have been willing to risk a loss or reduction of federal dollars in order to cast off the burden of federal intrusion. 

Rather than expect a convention to cure our country's ills, it would be wiser for states to direct their own affairs and insulate themselves from federal interference by becoming self-sufficient and rejecting proposals to expand the size and scope of government. 

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Should SCR 112 be adopted and the convention it calls for be convened, we won't know what may become of the U.S. Constitution until it's too late to reverse course. There could be a proposal to repeal or restrict the Second Amendment. Would it pass the convention? Maybe not in 2024, but what about in 10 or 15 years? Opening up the U.S. Constitution to the vagaries and passion of an untested amendment process carries risks we won't fully understand until the convention is already in progress.

It is also possible that a constitutional amendment restricting the growth of Medicaid or another federal entitlement program could be proposed in the name of "fiscal restraint." Such an amendment would be consistent with this resolution's call to "impose fiscal restraints on the federal government." Unfortunately, adopting any amendment specifically referencing Medicaid or another federal entitlement program would serve to permanently enshrine such programs' legitimacy and more broadly, the federal government's role in providing medical welfare. 

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Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

Would an Article V Convention improve the balance of power between the states and the federal government and uphold the principles of federalism? Its advocates believe it would, but their optimism is rooted in hope, not history. Countries that radically change or replace their constitutions are not known for increasing individual freedom or weakening their central governments. The shift is nearly always in the opposite direction.

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