A striking example of acting on pure whim is the Assembly of State Legislatures meeting at the Utah Capitol this week. The ignorance facet of this assembly is that it seems to think it has government-making authority. And the high price of that ignorance could be the very life of our Constitution.
What the meeting is trying to do is prepare the rules and procedures for a future constitutional convention. If conventions were merely statutory sessions, who would really care? We might even applaud its farsightedness. But constitutional conventions are not lawmaking assemblies. They are sovereign assemblies empowered by sovereign citizens who alone have the authority to make the rules, modify, create or disband their government. That's how our nation began. Our Constitution was created not by the 13 state legislatures, and not by the Confederation Congress, but by the higher authority of a free civilization: We the People of the United States.
The legislators meeting in Salt Lake City have no authority to make the rules or control the course of a federal convention. Article V of the Constitution grants no such power. It grants only two powers to the state legislatures: (1) to request a convention for proposing amendments and (2) to ratify or not ratify whatever might be proposed.
During the drafting of Article V our founders noted the absence of regulations for future conventions and they purposely left it that way. Why? Because the people are superior to the states and superior to the federal system they had just created. James Madison knew "difficulties might arise as to the form, the quorum, &c. which in Constitutional regulations ought to be as much as possible avoided" (Farrand, Records of the Federal Convention of 1787, Vol. II, p.630). Convention rules were avoided because future conventions could not be bound by preceding conventions. They are autonomous.
The rules and procedures adopted in 1787 were created in the Convention itself after George Washington gaveled the deputies to order. State resolutions and one passed by the Confederation Congress — which were intended to limit the scope of the 1787 Convention — were tossed out and the happiness of a sovereign people took precedence over those historic deliberations in Philadelphia.
The fine men and women now meeting in Utah (and a few of our own legislators) apparently cannot discern between government-making and statute-making. All of their hard work and everything they codify this week will be tossed out the minute the gavel goes down in a new constitutional convention. Unfortunately, however, the futile deliberations of the Assembly of State Legislatures are not our greatest worry — it's their success. If they succeed in beguiling the legislatures of 34 states to opt for a new convention, it will certainly not be run by them.
It is more likely that Gore Vidal's prediction will come true. He said: "It is a nice irony that the far right — disguised as conservatives — can take credit for so fundamental and radical an upheaval. In order to balance by law the budget, to put prayer to God and mammon in the schools, to forbid abortion, pornography and drugs ... they have set in motion the great engine that will overthrow the very Constitution they insist be so strictly constructed."
Legislators will be wise to scrap their plans for tampering with the Constitution. It is not defective; it simply needs to be taken seriously.
Don Fotheringham is a World War II veteran, a writer with commentary in the Marine Corps Times, author of "The President Makers," a frequent witness at legislative hearings and a writer for www.freedomfirstsociety.org.