The following piece, reprinted with permission from the Arizona Daily Independent, is a critique of Arizona Senate Majority Leader Andy Biggs’s book The Con of the Con Con and of his particular reading of Article V of the US Constitution. Our decision to repost this piece must not be read as a partisan position in itself nor as a political attack on Senator Biggs, whose public service to the people of Arizona is commendable. Indeed, respect for those dedicated to public service—whether we agree with them or not—is fundamental to Nomocracy in Politics. Yet, it is also critical to Nomocracy that the laws under which we live be accurately understood and subject to the scrutiny of thoughtful individuals committed to the rule of law, liberty, prudence, and an awareness of human imperfection. We offer, then, one particular side of this conversation on Article V, but we encourage our readers as always to consider alternatives, including that of Senator Biggs.
Andy Biggs’s The Con of the Con Con: The Case Against the States Amending the US Constitution is a confused and confusing book. Biggs hopes to provide a dispositive case against present efforts to use the hitherto-unused portion of Article V to amend the Constitution. Instead, he shows the limits of his own knowledge, not only of the drafting of the Constitution but also of the federal government’s parlous fiscal situation and of the Compact for America effort to amend the Constitution in response.
Biggs repeatedly says that the US Constitution is “divinely inspired.” Although it is an important teaching of his Mormon faith, what a member of the LDS Church must understand by it is rather vague. Prominent LDS leaders have offered that they did not think this teaching meant they had to accept that the minimum ages for office holders or the Three-Fifths Clause was divinely inspired. Rather, the Constitution as a means to secure American liberty is respected by Biggs’s church.
Thus, there is no religious requirement that he oppose particular attempts to amend the Constitution using the Constitution’s own methods. He certainly is not under any injunction to refer to attempts to have the states initiate the amendment process as a “con.” Nor need he adopt the Pollyanna attitude toward other means of addressing America’s present problems in evidence throughout his book.
Biggs begins his book by envisioning an amendment convention as the biggest media draw in American history—likely to draw “the greatest assemblage of media in the history of the human race.” On and on he goes, for page after page, even saying that terrorists will go to the convention.
This is just silly rhetoric.
Article V provides two methods of proposing amendments to the states for their ratification: a two-thirds vote of each house of Congress, and a vote of a state-initiated amendment convention. Every day that Congress sits is a day that the first of those two methods can be used. Approximately 100 amendments are proposed in Congress each year. Do we see a gigantic media circus in Washington, DC, keeping tabs on the proposal of amendments? Do we hear of terrorists attacking Congress?
Biggs repeatedly says that people who advocate a state-initiated amendment convention do not trust the American people. If they did, he says, they would just ask them to vote differently. When finally he proposes alternatives to an amendment convention for righting the present situation (which he concedes is rather grim), his chief idea is that citizens discuss their principles and vote.
After all, Biggs says, elections are having a great effect. America is really changing course. This is in a book published in February 2015. Seemingly, unfunded government obligations in excess of $200 trillion (according to economist Laurence Kotlikoff) are not any great reason for concern. Righting the country’s course is going to take “decades,” Biggs says, so we should be patient. With the Federal Government’s debt quickly closing in on $20 trillion, why the rush?
As I write this, the Supreme Court has just completed a process by which federal courts overturned more than thirty states’ marriage law, redefining marriage despite the Tenth Amendment’s clear reservation of such power to the states. It has also declared that the language of the Obamacare statute did not mean what it said, but what the president wanted it to say. If Biggs sees things getting better, I confess he is more perspicacious than I.
Besides being apparently oblivious of the magnitude of America’s fiscal problem, Biggs seems also completely unaware of the work that won James Buchanan the Nobel Prize in Economics. The bottom line of Buchanan’s Public Choice Theory is this: given a certain constellation of political incentives—interest groups, electoral systems, campaign laws, etc.—institutions will produce more or less the same outputs over time regardless who holds the offices. In other words, talking more and voting harder will not solve a problem that has been evident ever since the Supreme Court’s Revolution of 1937. The Reagan Revolution, the Gingrich Speakership, and the Obama midterm elections have come and gone, and still the debt grows and grows.
One process of which Biggs demonstrates surface awareness is the drafting and ratification of the Constitution. Though like virtually all lawyers he drastically overestimates the significance of The Federalist Papers, he has read the passages on amending the Constitution. He also has read a few passages of Farrand’s The Records of the Federal Convention. Alas, he did not get the message.
The Philadelphia Convention met as a result of a general impression among America’s leading politicians that the Articles of Confederation needed at least to be amended. Immediately upon electing a president and closing the doors to reporters, the Convention turned to consideration of a proposal to replace the Articles with a completely new constitution.
If the delegates had thought as Biggs thinks, that would never have happened. Repeatedly, Biggs insists that amending the Constitution would be useless, because our elected officials would just ignore the amendments anyway. Therefore, what is needed is to leave the Constitution as is and to change the people. Once the people are changed, they can vote for officials who will follow the Constitution.
Even if that were not the case, he says, we do not need to amend the Constitution now. There will be time enough later.
Leaving aside the fact that Buchanan deserved his Nobel Prize, imagine Biggs talking to James Madison in April 1787. The Articles of Confederation, after all, required member states to contribute money and men to the federal government. So what if the states were not complying?
Biggs: “Mr. Congressman, what do you intend to do about it?”
Madison: “I intend to propose a new constitution which will create a government capable of enforcing its policies.”
Biggs: “But Mr. Congressman, state officials will just ignore the new government anyway. What is needed is to change the people so that they will elect state officials who will comply with the Confederation Congress’s commands.”
Madison: “Great idea. I’ll tell Dr. Franklin, General Washington, and the boys to stay home. There’s no need for a Philadelphia Convention. We’ll just keep the Articles of Confederation and try to persuade the people that they should elect state officials who will comply with Congress’s policies.”
Of course, this imaginary scenario is absurd. Yet, that is Biggs’ chief argument: not only is an amendment convention a bad idea, but any amendment is a bad idea. The Constitution, although it doesn’t work—that is, doesn’t keep Congress from bankrupting the country with what Buchanan’s theory tells us will be endless deficit spending if we don’t change the system—should be kept unchanged. This is true even though the “divinely inspired” Constitution provides us with means to change the system for the better!
James Madison and his friend Thomas Jefferson had a close political ally: Virginia’s US senator John Taylor of Caroline. Taylor asked the question of people who opposed a particular amendment proposal in his own day, Would you adopt a statute with a proviso that it could never be amended?
Of course, any legislator would say “No.” Any significant statute will prove imperfect when implemented and litigated, and so legislatures commonly devote time and effort to oversight of executive-branch agencies. They want to see where the problems are so that they can remedy them.
How much more necessary then, asked Taylor, to amend the Constitution periodically? After all, politicians have much more incentive to find ways around constitutions than crooks and cheats do to find ways around ordinary statutes. I am sure that Biggs, a veteran Arizona state senator, himself is regularly involved in oversight of Arizona executive-branch agencies. Yet, here he is disagreeing with Taylor’s conclusion. He thinks America’s most important law—the US Constitution—should go unamended despite evident systemic problems.
Besides his general objections to the idea of amending the Constitution, Biggs also lobs specific objections at amendment convention efforts. When it comes to people who want to have an open convention (one at which amendments would be drafted), he levels charges of dishonesty, disingenuousness, ignorance, and stupidity. All the while, he refers to leaders of that effort as his “friends.”
Biggs repeatedly says that proponents of an amendment convention have told him that just voting has not remedied the situation, and so amendments are necessary. Logically, they favor a state-initiated convention because—as George Mason said in the Philadelphia Convention—since Congress is a big part of the problem, it is not going to provide the solution. Biggs says that no, we must not have such a convention, for it might yield bad results.
What Biggs ignores here is that there is essentially nothing on the left wing’s wish list of the last one hundred years that it has not eventually gotten. The UN, Social Security, gay marriage, government-controlled medical care, tight restriction of capital punishment, affirmative action, EPA mandates…what exactly Biggs thinks would be lost in case of a convention, I am not sure.
He downplays the significance of the states’ role in ratifying any proposed amendment. An amendment convention would be dangerous, he insists. By his logic, since Congress can propose amendments, Congress should never be allowed to meet.
Seemingly because he approached the matter with a felt imperative to oppose amendments, Biggs takes some shots at the Compact for America (CFA) interstate-compact approach as well.
Although already adopted by four states as the “Compact for a Balanced Budget,” and despite having been developed and vetted with the input of numerous scholars, intellectuals, statesmen and think tanks, the CFA approach is to Biggs “the Dranias Compact.” Apart from sophomorically personalizing a growing national movement, Biggs’s chief charge against the CFA approach is that it has “no safeguards.” Seemingly unfamiliar with the specific language of the compact providing an enforcement mechanism for the convention’s laser-focused agenda, he says simply that it might not work. But then we would be no worse off.
If we follow Biggs’s advice, we will be no better off. The children and grandchildren to whom he dedicates his book deserve better than that.
Although the lower house of the Arizona State Legislature has voted for the Compact for a Balanced Budget, Senator Biggs has succeeded for two years in preventing that measure from coming to a vote in the State Senate. Fortunately, however, the Supreme Court has opened a new path to achieving a state-initiated amendment through the CFA approach.
In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court held that the people of a state could through the referendum process empower a commission to exercise power over the time, place, and manner of congressional elections which the Constitution by its terms left in the state legislature. One could easily conclude that the people of a state could through the same mechanism exercise the Article V power to call for an amendment convention which Article V assumes will be exercised by that state’s legislature. If President Biggs cannot be persuaded to allow Article V bills to advance, patriots may have no other option.
Kevin R. C. Gutzman is the New York Times best-selling author of four books and Professor of History at Western Connecticut State University. He holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia. Happy to be a former attorney, Gutzman devotes his intellectual energy to teaching courses in the Revolutionary and constitutional history of the United States, to writing books and articles in these fields, and to public speaking on related topics. Dr. Gutzman’s first book was the New York Times best-seller, The Politically Incorrect Guide to the Constitution, an account of American constitutional history from the pre-Revolutionary days to the present. Gutzman’s most recent book is James Madison and the Making of America, and he is already at work on a fifth monograph, Thomas Jefferson–Revoutionary (forthcoming). Gutzman has edited new editions of John Taylor of Caroline’s Tyranny Unmasked and New Views of the Constitution of the United States.