AT: ConCon CP

Solvency Deficits

Courts Better
The Supreme Court should be the one to amend the
constitution since the Court interprets the Constitution
Kathleen Sullivan, 99, Stanley Morrison Professor of Law at Stanford University,

1999, Great and Extraordinary Occasions Developing Guidelines for

Constitutional Change, Appendix D, http://www.constitutionproject.org/wpcontent/uploads/2012/09/32.pdf
A third danger lurking in constitutional amendments is that of mutiny against the
authority of the Supreme Court. We have lasted two centuries with only twenty-seven amendments because the
Supreme Court has been given enough interpretive latitude to adapt the basic charter to changing times. Our high court
enjoys a respect and legitimacy uncommon elsewhere in the world. That legitimacy
is salutary, for it enables the Court to settle or at least defuse societys most ideologically
charged disputes. Contemporary constitutional revisionists, however, suggest that if
you dislike a Supreme Court decision, mobilize to overturn it. If the Court holds that free speech
rights protect flag burners, just write a flag-burning exception into the First Amendment. If the Court limits student prayer in public
schools, rewrite the establishment clause to replace neutrality toward religion with equal rights for religious access APPENDIX D 43

Such amendment proposals no doubt reflect the revisionists frustration that

court packing turns out to be harder than it seems Presidents Reagan and Bush, as it turned out,
instead.

appointed more moderate than conservative justices. But undermining the authority of the institution itself is an unwise response to

In any event, it is illusory to think that an amendment will somehow

eliminate judicial discretion. Most constitutional amendment proposals are, like the
original document, written in general and open-ended terms . Thus, they necessarily defer
hard questions to ultimate resolution by the courts. Does the balanced budget amendment give the
such disappointments.

president impoundment power? Congress settled this matter by statute with President Nixon, but the amendment would reopen the
question. Does splattering mustard on your Fourth of July flag napkin amount to flag desecration? A committee of senators got
nowhere trying to write language that would guarantee against such an absurd result. Would unisex bathrooms have been
mandated if the Equal Rights Amendment had ever passed? Advocates on both sides debated the issue fiercely, but only the

For the most part we have managed to keep shortterm politics out of the rewriting of the fundamental charter. Now is no time to start.
Supreme Court would ever have decided for sure.

Of course, on rare occasions, constitutional amendments are desirable. We have passed various structural amendments to tie our

But unless the

ordinary give-and take of our politics proves incapable of solving something, the
Constitution is not the place to go to fix it.
hands against short-term sentiments, for example, through the amendments expanding the right to vote.

Runaway Conventions
Runaway conventions are possible and empirically provenrestrictions are often violated or facilitate the occurrence of a
runaway convention
Thomas R. Eddlem, 14, a freelance writer and a former newspaper editor whose
words have been reprinted in six books by four different publishers. He has been
published in more than 20 publications and popular websites, 5/26/2014, Is a
Runaway Article V Convention a Myth? 1787 Proves Otherwise,
http://www.thenewamerican.com/usnews/constitution/item/18338-is-a-runawayarticle-v-convention-a-myth-1787-proves-otherwise
Is a runaway constitutional convention impossible? Proponents of utilizing Article V of the U.S. Constitution to
convene a convention of states to amend the U.S. Constitution claim that a well-worded resolution by state
legislatures would not go awry because such a runaway convention is unprecedented. Nick Dranias of the
Goldwater Institute one of the more energetic proponents of an Article V convention published an on-line
pamphlet called 10 Facts to Rebut the Mythology of a Runaway Convention. His leaflet is pretty typical of the

There is zero precedent

that any convention of the states has ever runaway from its assigned agenda. There
argumentation addressing skeptics o f a constitutional convention. It insists:

have been 12 interstate conventions in the history of our country. All of them stayed within their stated agenda.
Even the Constitutional Convention of 1787 was not convened to amend the Articles of Confederation, but to
revise and alter the Articles to establish an effective national government. This was fully consistent with the
Articles of Confederation because the Articles authorized alterations a term that had revolutionary significance

The reality could not be

further from the truth . Most of the 12 interstate conventions mentioned by
Dranias were small regional assemblies of a handful or fewer states, or regional military
conventions during the War for Independence from Britain. They involved only a few
states and were convened at a time when the nation was less interested in new
constitutional governance than military survival. But the 1787 convention was
clearly a runaway convention in the sense that every single state delegation that
had restrictions imposed on its delegates by their state legislature violated those
instructions . The point is key to understanding how constitutional conventions
would operate today, even if nearly every American is grateful that the delegates in 1787 ignored their
because it echoed the language of the Declaration of Independence.

state's instructions. However, most politicians who would become delegates today would not likely be conversant in
Montesquieu's theories of separation of powers or John Locke's idea of natural law as were James Madison, Elbridge
Gerry, and George Mason. Indeed, today there are vigorous, outright moves by the political left to repeal the
freedom of speech and press (protected by the First Amendment) and abolish the right to keep and bear arms
(Second Amendment) by means of an Article V convention. In 1787, only two states New Jersey and North
Carolina sent delegates to Philadelphia without any restrictions on how they could revise the national
government. All the other 10 states sending delegates (Rhode Island didn't send any) put restrictions on what kind
of government their delegates could design. New York and Massachusetts limited their delegates to revising the
Articles of Confederation only, and both Massachusetts and Delaware restricted their delegates from amending the
rule under Article V of the Confederation that guaranteed each state the right of vetoing constitutional changes and
the right to recall congressmen. New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina,
and Georgia put only one restriction on their delegates. These seven states simply required that the new
Constitution would have to be ratified by the several states before going into force, a term of art referring back to
the Confederation Constitution that meant ratification by all 13 states who were then members of the
Confederation. The Confederation's Article 13 stated of amendments to the Articles of Confederation: nor shall any
alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the

the Constitution
that emerged from the convention of the states in 1787 respected none of these
restrictions by state legislatures. The Confederation was not revised; it was
thrown in the historical dumpster. The Congress of the Confederation did not
approve the 1787 Constitution, nor did all 13 states ratify our current U.S.
Constitution before it was put into force. Rhode Island didn't ratify the U.S. Constitution until May 29,
United States, and be afterwards confirmed by the legislatures of every State. Of course,

1790, almost two years after the Constitution took effect, and after a congressional election, the election of
President Washington, and passage of the Judiciary Act setting up the U.S. Supreme Court, the first tariff act, and
The delegates in 1787 merely threw the rule of unanimity enshrined in
America's first national Constitution into the dumpster and wrote new ratification
rules in Article VII of the new Constitution (which said three-fourths of the state legislatures or state
ratifying conventions was sufficient). A new convention would be empowered to do precisely
the same thing in revising the ratification procedures enshrined in the current
Constitution: Delegates could proclaim them ratified after adoption by a mere
majority of state legislatures or even by a national popular vote. The history of the
1787 convention proves that the American Legislative Exchange Council
(ALEC) is wrong in stating that there are far more political and legal constraints on a runaway convention
than on a runaway Congress. Unlike the arduous procedures under the current U.S. Constitution , a convention
can write the ratification procedures to fit what they expect will be approved. In other

other legislation.

words, the convention could lower the bar to the point to where proponents would be guaranteed to be able to jump
Some proponents of a constitutional convention , the Compact for America group, hold
out hope that imposing oaths upon delegates to follow their preferred restrictions
would work. But, the virtue of fastidious delegates who steadfastly hold to the
restrictions imposed upon them by their states may actually help a
convention veer off the tracks and become runaway. C onsider that in 1787 New York

over it.

delegates John Lansing and Robert Yates left the Philadelphia convention in protest when the convention exceeded
the mandate of the New York legislature's resolution. But all their departure did was free up Alexander Hamilton
who had no such legalistic scruples to adopt the Constitution for New York as the state's lone remaining
delegate. This is not to imply that the 1787 Constitution is illegal or that the American government today lacks
legitimacy. To the contrary,

the states have always held complete sovereignty

in the words of

the Declaration of Independence to alter or abolish government at a convention , whether

that convention is the Continental Congress in 1776, the 1787 Philadelphia convention, or one convened under

The real question before going to a constitutional convention under

Article V today is this: Do Americans trust politicians nominated by state legislatures
today to keep to their instructions more closely or to draw up a better system of government
than those nominated by the state legislatures in 1787? Organizations such as ALEC
and people such as Nick Dranias clearly do have that trust, while constitutionalist
skeptics such as The John Birch Society and Eagle Forum do not see our current crop
of politicians as more enlightened than the Founding Fathers.
Article V of the U.S. Constitution today.

UQ: Tons of Amendments Happening NOW

The number of constitutional amendments being proposed in
the status quo is extremely high
Kathleen Sullivan, 01, Stanley Morrison Professor of Law at Stanford University,
12/19/2001, Constitutional Amendmentitis,
http://prospect.org/article/constitutional-amendmentitis
Against this sparse backdrop, the current proliferation of proposed constitutional
amendments is striking. Since the November 1994 elections, three proposed constitutional
amendments have already reached the floor of at least one house of Congress. A
balanced budget amendment passed in the House but fell one vote short in the Senate last March . An
amendment that would have imposed congressional term limits likewise failed on
the floor of the House in March. But in June, the House passed, by a vote of 312120, an amendment authorizing Congress and the states to prohibit flag
desecration. The Senate Judiciary Committee voted out that amendment last month and it now heads to the
Senate floor. Other proposed constitutional amendments are in the pipeline, including a

proposed "religious equality" amendment on which a House Judiciary subcommittee has held hearings. The leading
draft of that amendment would require greater inclusion of religious expression in public settings and allow "public

Some of these amendment

proposals have been resurrected from death in earlier Congresses. The balanced budget
or ceremonial accommodation of religious heritage, beliefs, or traditions."

amendment, for example, failed by comfortable margins in Congress after Congress until it went down this year in a
squeaker. The flag desecration amendment that might succeed this year was narrowly averted in 1992 when the
Democratic leadership managed to get Congress to pass a flag protection statute, which the Supreme Court
promptly struck down as violating the First Amendment. Other amendments in this year's crop are newer. For
example, the term limits amendment reflects relatively recent anti-incumbent fever also manifest in the decisions
of 23 states since 1990 to enact congressional term limits by popular initiative--which were struck down by the
Supreme Court last May as unconstitutional. And the draft religious equality amendment is a newer and more
sophisticated version of older proposals that simply would have reinstated school prayer.

This rash of

amendment proposals is cause for alarm , even apart from any of their individual merits. For
there are strong structural reasons for amending the Constitution only reluctantly
and as a last resort. This strong presumption against constitutional amendment has
been bedrock in our constitutional history, and there is no good reason for
overturning it now.

Ruins Stability
Adding new amendments to the Constitution ruins the stability
of the the underlying structure to modern law and politics
Kathleen Sullivan, 01, Stanley Morrison Professor of Law at Stanford University,
12/19/2001, Constitutional Amendmentitis,
http://prospect.org/article/constitutional-amendmentitis

Constitutional idolatry, of course, is not an attractive organizing principle. But Jefferson's position lost out in our
constitutional history for good reasons that do not depend on fetishizing the Constitution or treating it as mystically

A brief recap of these reasons will help show why the Congress's current
amendment fever is misguided. 1. Stability. James Madison, one of the principal architects of
sacred.

Article V, disagreed with Jefferson. In Madison's view, "a little rebellion now and then" is to be avoided. To be sure,

Madison acknowledged in Federalist No. 43 that "useful alterations will be suggested by

experience," and that amending the Constitution must not be made so difficult as to "perpetuate its discovered
faults." But Madison cautioned too "against that extreme facility" of constitutional
amendment "which would render the Constitution too mutable ." Implicit in this
caution is the view that stability is a key virtue of a Constitution, and that
excessive "mutability" would thus undercut the whole point of having a Constitution
in the first place. As Chief Justice John Marshall put the point similarly in McCulloch v. Maryland, the
Constitution is "intended to endure for ages to come." Keeping amendment relatively
infrequent thus preserves public confidence in the stability of the basic
constitutional structure. While the Framers had to take the argument from stability on faith, the argument
looks stronger two centuries later. The relative success of the American constitutional regime, one bloody civil war

Our spare Constitution has

withstood the test of time. Anyone with a Burkean trust in the collective wisdom
embodied in custom and tradition ought to be wary of a sudden shift to rapid
constitutional revision.
excepted, supports arguments along the lines of "if it ain't broke don't fix it."

Destroys Rule of Law

Constitutional amendments blur the line between politics and
the law- it makes the fundamental framework of our
government look like a piece of ordinary legislation- and
trivializes the Constitution
Kathleen Sullivan, 01, Stanley Morrison Professor of Law at Stanford University,

12/19/2001, Constitutional Amendmentitis,

http://prospect.org/article/constitutional-amendmentitis
2. The Rule of Law. The very idea of a constitution turns on the separation of the
legal and the political realms . The Constitution sets up the framework of
government. It also sets forth a few fundamental political ideals (equality, representation,
individual liberties) that place limits on how far any short-term majority may go. This is
our higher law. All the rest is left to politics. Those who lose in the short run of ordinary
politics obey the winners out of respect for the long-run rules and boundaries set
forth in the Constitution. Without such respect for the constitutional framework, the
peaceful operation of ordinary politics would degenerate into fractious
war . Frequent constitutional amendment can be expected to undermine this
respect by breaking down the boundary between law and politics . The more you
amend the Constitution, the more it seems like ordinary legislation. And t he more
the Constitution is cluttered up with specific regulatory directives, the less it looks
like a fundamental charter of government . Picture the Ten Commandments with a few
parking regulations thrown in. This is why opponents of new amendments often argue that they would tend to

They trivialize it in the sense that they clutter it up and

diminish its fundamentality. Consider the experience of the state constitutions . Most
trivialize or politicize the Constitution.

state constitutions are amendable by simple majority, including by popular initiative and referendum. While the

the fifty state constitutions

have had a total of nearly 6,000 amendments added to them. They have thus taken on what
federal Constitution has been amended only 27 times in over 200 years,

Marshall called in McCulloch "the prolixity of a legal code"--a vice he praised the federal Constitution for avoiding.

Many of these state constitutional amendments are products of pure interest-group

politics. State constitutions thus are difficult to distinguish from general state
legislation, and they water down the notion of fundamental rights in the process: The
California constitution, for example, protects not only the right to speak but also the right to fish.

Amendments politicize a constitution to the extent that they embed in it a

controversial substantive choice. Here the experience of Prohibition is instructive: The only modern
amendment to enact a social policy into the Constitution, it is also the only modern amendment to have been
repealed.

Amendments that embody a specific and controversial social or economic

policy allow one generation to tie the hands of another, entrenching approaches
that ought to be revisable in the crucible of ordinary politics . The balanced budget

amendment, for example, would enshrine, for the first time in our history, a particular and highly contestable
macroeconomic policy--no deficit spend ing--in the Const i tution. As Justice Oliver Wendell Holmes cautioned early
in the century, however, the Constitution ought not "embody a particular economic theory," whether that of Milton
Friedman or John Maynard Keynes.

Ruins Coherence
Inconsistencies within the Constitution due to new
amendments could destabilize and undermine structures or
rights that were previously written in the Constitution
Kathleen Sullivan, 01, Stanley Morrison Professor of Law at Stanford University,
12/19/2001, Constitutional Amendmentitis,
http://prospect.org/article/constitutional-amendmentitis
3. Coherence. The Constitution was drafted as a whole at Philadelphia. The Framers had
to think about how the whole thing fit together. Amendments, in contrast, are
passed piecemeal. In passing a single amendment in response to some particular
felt necessity of the time, the nation may easily overlook or ignore some
inconsistency or tension between the amendment and the basic structure . And such
inconsistencies may have the unintended consequence of undermining the unity
and coherence of the document as a whole, destabilizing structures or rights we
have taken for granted. Take the balanced budget amendment, for example. That amendment, if passed,
would alter fundamentally the original constitutional framework for taxing, borrowing, and spending by imposing
supermajority provisions that in effect would shift power from congressional majorities to minorities.

ConCon is defective
The states dont have the power to amend the constitutionCongress has veto power and is unlikely to let the states limit
its power
Michael B. Rappaport, 10, director of USDs Center for the Study of
Constitutional Originalism, November, 2010, REFORMING ARTICLE V: THE PROBLEMS
CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX
THEM, http://www.jstor.org/stable/pdf/20788836.pdf?acceptTC=true
Now, consider a different amendment provision . This provision allows Congress to amend
the Constitution, subject to ratification by state legislatures or conventions, but it
provides no other amendment method. Thus, it gives Congress a veto on any
amendments. This provision would also make the Constitution less reflective of
popular views and less desirable. Given the desire of political entities to maintain and expand their
power, Congress is unlikely to allow the Constitution to be amended to limit its
power . Moreover, because Congress tends to adopt the perspective of the federal
government generally, Congress might not be quick to limit the power of the other
branches of the federal government.62 Thus, if a change in values or circumstances
were to require additional limitations on Congress or even on the federal
government, it is unlikely that an amendment adopting those changes would be
passed. Moreover, if Congress were to abuse its power, no constitutional reform would
be forthcoming. Over time, then, one would expect the Constitution to become
increasingly distorted normatively. The Constitution would fail to add needed checks
on Congress and the federal government, but would grow to include additional
limitations on the states (and perhaps the President). Finally, consider the existing Article V
provisions. We can see that it is [are] largely the same as the one described
immediately above that permits only the congressional amendment process. Given the
defects in the convention process, it is as if that process does not exist. Thus, the same normative
distortions that apply to a constitution with only the congressional
amendment procedure --a bias in favor of Congress and the national
government , and against the states--apply to the existing Constitution. The one
exception to this claim is that the national convention process would be available if matters ever turned
catastrophic. At that point, the state legislatures might be willing to risk a runaway
convention and the other costs to address genuinely overriding problems. But
absent this extraordinary situation, the national convention process would not be
employed and the Constitution would exhibit serious normative problems . My
argument that the failure of the national convention method undermines the
constitutional amendment process by preventing certain amendments from being
enacted is confirmed by our constitutional history . The dominant pattern of constitutional
amendments reveals an amendment process that has neither placed checks on Congress or the federal
government, nor provided protections to the states. Instead, it has often expanded the federal government's power
or taken actions that have been largely orthogonal to the federal government's interests.

Constitutional amendments do not work because any

amendment that restricts Congress will not pass
Michael B. Rappaport, 10, director of USDs Center for the Study of
Constitutional Originalism, November, 2010, REFORMING ARTICLE V: THE PROBLEMS
CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX
THEM, http://www.jstor.org/stable/pdf/20788836.pdf?acceptTC=true
In this Article, I have argued that the constitutional amendment procedure of Article V is
defective --not because the supermajority requirements it imposes are too strict, but instead because
the national convention amendment method does not work . Because no
amendment can be enacted without Congress's approval, limitations on the federal
government that Congress opposes are virtually impossible to pass . This defect
may have had enormous consequences in recent decades, possibly preventing the
enactment of several constitutional amendments that would have constrained
Congress, such as amendments establishing a balanced budget limitation, a line-item veto, or congressional
term limits. Thus, the increasingly nationalist character of our constitutional charter may
not be the result of modern values or circumstances, but an artifact of a distorted amendment
procedure. Happily, reforms of the national convention amendment method exist that would address this
defect. Here, I have recommended a proc edure that would allow two-thirds of the state legislatures to propose an
amendment. That proposed amendment would then be subject to ratification by the states, acting through state
conventions or state ballot measures. I also argue that it may even be possible to place this new state drafting
procedure in the Constitution. While the national convention amendment method is broken, a strategy exists that
might allow this method to be used one time to pass the state drafting procedure. If the nation ever does decide to
employ this strategy and enact something like the state drafting procedure, this may help to restore the federalist
character of our Constitution and political system.

Nationalism DA/Turn?
So I kind of thought up of a disad to the counterplan- ConCon =
decline in federalism, and federalism is key to preventing wars and
etc I dont know it seemed like a good idea at the time

Constitutional conventions contribute to the movement

towards nationalism and a Constitution in favor of Congress
and shifts away from federalism
Michael B. Rappaport, 10, director of USDs Center for the Study of
Constitutional Originalism, November, 2010, REFORMING ARTICLE V: THE PROBLEMS
CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX
THEM, http://www.jstor.org/stable/pdf/20788836.pdf?acceptTC=true

The first three Parts of this Article have shown that the national convention process is broken and that its failure is a

it is generally known that the national convention

process does not work , it is not usually recognized how consequential this failure
has been. The ineffectiveness of the convention process does not simply make it
harder to amend the Constitution. Rather, there is a strong argument that the
current process has distorted the current Constitution in favor of Congress and
against the states. Indeed, the entire pattern of constitutional history would seem to
be affected. That history has been characterized largely by a movement, through both constitutional
amendments and constitutional interpretations, from federalism to nationalism. The main constitutional
changes--the Reconstruction Amendments, the Progressive Era Amendments, the New Deal interpretations, and
the Warren Court interpretations--have generally led to a more nationalist constitution. Those
who sympathize with this development tend to view it as a necessary response to
modern forces--as an appropriate reaction to moving from a horse and buggy world to one of airplanes and
significant normative defect. While

the Internet. Even those who are less happy with the trend toward nationalism often view it as reflecting the

But my argument here suggests that these accounts offer at best a partial
movement towards nationalism appears to be in part the result of a
constitutional amendment process that blocks amendments that would move away
from nationalism either by limiting the federal government or empowering the
states. If constitutional amendments relating to balanced budgets, a line-item veto,
and term limits had been enacted--to mention just three examples from recent years--one would
see a less unidirectional constitutional history. The Constitution might then be seen as embracing
genuine views of the American people.
explanation. The

the national government when it was perceived as solving problems, but imposing restraints on the national
government and Congress when they were seen as necessary.

Empirically federalism bolsters peacemaking and promises to

solve future conflicts numerous examples
Daniel J. Elazar , 12, Jerusalem Center for Public Affairs, 4/19/12, FEDERALISM

AND PEACE-MAKING. http://www.jcpa.org/dje/articles/fed-peace.htm

One of the most important developments contributing to the shift in the world
political paradigm from statism to federalism has been the demonstrated utility
of federal arrangements in peace-making. In a world well advanced in its movement
toward federalism as the new paradigm for interstate and intergroup relations, we
must expect it also to offer considerable promise for peace-making. While it is wise not to
exaggerate that promise and look upon federalism as some kind of vade macum, we as students of federalism with
our institutions should work hard to find ever better ways to utilize and apply federalism to the cause of peace.

This conference has focused on many examples including the most outstanding,
e.g., the European Union, post-Franco Spain, post-apartheid South Africa, Belgium,
the United Kingdom, India and earlier classic examples such as Australia and
Canada. We have also focused on ongoing efforts including advanced ones such as
Russia and those in progress like Cyprus and the Israel-Palestinian conflict. As we all
know, this is by no means an exhaustive list. We have made no direct reference to resolution of such North
American problems as the status of Puerto Rico or of the various Native American nations. We have not considered
the Caribbean Community or the importance of the states in the restoration of democracy in Brazil. We did take a
relatively bold step in looking at regional economic arrangements as incipient confederal ones or more with political
implications. We did pay serious attention to the revival of confederation as a species of the genus federalism and
the utility of confederal arrangements in peace-making efforts and we moved further down the road towards
understanding how asymmetrical arrangements can be utilized in federal and confederal systems. What just about

everyone meeting at this conference understands from one perspective or another is how federalism
has become an aid to peace-making, at least since the end of World War II. At the same
time we have not really focused on those cases where the declared use of federalism or the functional use of
federal arrangements have not worked. There is almost a paradox here. Where federalism has worked, often it has
been proclaimed as something else. Where federalism has been formally introduced as a solution to peace-making
it has more often than not failed or at the very least disappointed. It is almost as if the term "federalism" demands
too much of the parties involved and federal arrangements can only be used successfully in conflict situations when
they are masked as "functionalism" or "autonomy" or "decentralization" or whatever.