It’s Time to Hold a New Convention

Our country is facing a period of partisan polarization seldom seen, and it is making it more than normally difficult for our federal government to function effectively. Continued arguing over the same issues only serves to further entrench each side against the other. For our nation to survive this trying period we must find a way for us all to come together and find common ground. I believe that way could be found through a new Constitutional Convention.

Nearly everyone is dissatisfied with some portion of the Constitution, whether they feel some portion needs to be abolished, another strengthened, or something entirely new enacted. It’s an arguable point that a document originating in the late 18th century could not foresee many of the realities of our 21st century existence, and while the normal amendment process has attempted to keep pace with the changes in our society the fact is that calls for change often find themselves bottlenecked by a Congress that’s often too wedded to the status quo to allow for real change to occur. Many changes have been proposed over the years that in my opinion should at least have been presented to the states for ratification, such as term limits for members of Congress, a balanced budget or a ban on abortions. Even those suggestions that might have a majority of popular support usually can’t get submitted to the states for ratification because it only takes a one-third plus one minority of persons in just one house of the Congress who don’t want such an amendment to oppose its passage. The only other way for an amendment to be submitted for ratification is for a two-thirds majority of the various state legislatures to call for a constitutional convention. It would require a two-thirds majority of the states to call for such a convention, and so far we have never reached that threshold.

Many persons who oppose a convention state the reason it’s a bad idea is because once a convention is convened they would be able to make any proposal they wished, up to and including a complete re-writing of the Constitution whereby we would possibly have a form of government completely different from the one we now have. That is certainly a valid point, considering the original purpose for our original convention in 1787 was merely to propose amendments to the existing Articles of Confederation and we wound up with a radically transformed government with greater authority at the federal level. But the fact that ratification of such any proposed changes would require ratification by three fourths, or thirty eight, of the fifty states would seem to be a fairly secure protection against anything being enacted that was not truly the will of the American people. We should not forget that the ratification of our current Constitution was only made possible by the promise that once it was enacted a Bill of Rights enumerating limits of the government against Americans would be proposed for ratification as well. This is what gives me confidence that a new Convention would not be able to change our nation in any egregiously harmful fashion.

I believe the value of a convention lies not only in the possibility that new amendments may be added to the Constitution, but perhaps even that some issues could be laid to rest for once and for all by their failure to be ratified. If some proposed amendment not only fails to achieve ratification by 38 states but also receives a large majority of states voting against its ratification, perhaps its proponents will let go and allow other matters to proceed instead.

The hurdle of getting two thirds of the states to call for a convention, however, is a high one. But we have reason to hope in the fact that at this time a total of 28 states have petitioned Congress for a convention to propose a Congressional balanced budget amendment; that means only six more states would need to sign on for such a convention to proceed. Of course the states proposing the Convention are not intending for it to consider anything other than a balanced budget, but history has already shown us that once convened a Convention cannot be limited in such a fashion and they would be free to consider proposing any manner of other amendments they see fit. Once proposed by the Convention the various states would be free to either vote on them and either grant or deny ratification, or they could simply not bother to take up the proposed amendment.

In our highly polarized political environment, especially at the federal level, there is almost no chance any real change is going to happen any time soon. I believe if the states were to call for a Convention it could get the most controversial issues out in the open and provide a national referendum which might get more politicians interested again in compromise for the greater good. It’s certainly worth a try, isn’t it?

What if Trump Tries to Pardon Himself?

There has been a great deal of speculation regarding the fate of President Trump once he leaves office. One of the issues that has generated the greatest amount of attention considers whether he might try to pardon himself. A similar question is whether he might instead resign before the end of his term so that VP Mike Pence could step in for the final few days and issue Trump a pardon. An analysis of either of these possibilities should begin with the question of whether either one is even allowed under the Constitution.

Article Two, Section 2 of the Constitution states the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. The only time a president has received a pardon from another president is when Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”. It is largely because of this pardon that anyone is even considering the possibility that Trump might receive a pardon. What sets this pardon apart from all others is that at the time it was issued Richard Nixon had not been formally charged with any crime, so it sought to preempt any proceeding which might bring forth an indictment. Lots of people believe that Nixon’s pardon proves that Trump could be pardoned by Pence in much the same way, but that is by no means a foregone conclusion. The main reason the Nixon pardon stood is because no one sought to challenge its validity, whereas it is almost certain any such pardon issued by Trump or Pence would be subject to a court dispute.

The problem with such a broad, preemptive pardon as Nixon’s, as well as any liable to be issued on Trump’s behalf, is in its vagueness and the fact that the actual commission of any crime has not been established. How can a pardon be granted when no evidence has been presented that it even happened? Let’s remember that when a person accepts a pardon, he is actually admitting he is guilty of the crimes for which he received it. A pardon for no specific crime would appear to then be a pardon of every imaginable crime against the United States, from crossing against the light in a national park to molesting children in the White House residence; acceptance of every crime in general would rob the recipient of the ability to defend himself against any crime specifically. I don’t think any rational person, let alone the so-called “originalist” majority of Justices on the Supreme Court, would imagine that the Founding Fathers had such a broad interpretation in mind when they included the pardon power in the government’s founding document. Frankly, it makes no sense to think a pardon could be issued for an offense of which a person hasn’t even been accused, especially when no specific charge has been levied. Add to these things the fact that a presidential pardon, whether by Pence for Trump or by Trump for himself, would only help him avoid punishment for federal level crimes, leaving him still vulnerable to prosecution for crimes at the state level, where he would probably face the heaviest penalties in the first place. For all these reasons I personally doubt there will be any last minute pardons before Donald Trump leaves office as president.