Law Professor Concerns About COS
The Florida State University Tallahassee, Florida 32306-1043 College of Law March 10, 1995 Mr. Eric J. Thorn Legislative Analyst House Republican Office 323 The Capitol Tallahassee, FL 32399-1300 Dear Mr. Thorn: This is in response to your inquiries regarding HCR 1401, which calls for the convening of a "Conference of the States" and would authorize Florida's participation in such a conference. As professors of constitutional law at the Florida State University College of Law, we are extremely troubled by the possibility that this proposed Conference could be construed as an application for a constitutional convention under Article V of the United States Constitution. Such a convention could evolve into a wholesale assault on our Constitution, and lead to proposals for destroying our present constitutional system. The history of the 1787 constitutional convention indicates that once a constitutional convention is convened, the delegates to that convention could expand the agenda of the convention beyond its original purposes, dictate their own rules for the ratification of the convention's proposals, and therefore circumvent the fairly strict requirements of Article V. Moreover, again using the 1787 experience as our model, no external authority -- neither Congress, the courts, nor states that disagree with the convention's proposals -- would have the legal authority to reject the convention's decisions if the convention itself deemed those decisions binding on the entire country. Our conclusions about the dangers of the "Conference" proposed in HCR 1401 are not mitigated by the ambiguous phrasing of the proposal, nor by the final subsection stating that the Concurrent Resolution :does not constitute an application by the Legislature of the State of Florida for the calling of a federal Constitutional Convention within the meaning of Article V of the United States Constitution." It is essential to keep in mind that the 'Conference of the States' could define its objectives for itself, and could reject preexisting limitation on its authority, just as the 1787 convention abandoned the limitation imposed on it by the Articles of Confederation. The broad language of the Concurrent Resolution authorizes the Conference to "reform the Federal Government" and authorizes Conference delegates to "propose, debate, and vote on elements of an action plan to restore checks and balances between the states and the national government." These broad mandates could easily be construed by the Conference as providing it the authority to fundamentally revise our existing constitutional structure. It is the strange (and dangerous) nature of a constitutional convention that it defines its own objectives and sets the guidelines for its own success. Once a constitutional convention begins, the only limit on its power is political. The federal courts have consistently refused to entertain questions regarding the legitimacy of constitutional amendments (see Coleman v. Miller, 307 U.S. 433 (19139)). Therefore, a new constitutional convention presents the disturbing prospect of many different political bodies -- the Conference, the existing federal government, dissenting states -- all vying for preeminent political authority without the possibility of judicial review to settle the dispute peacefully. This is truly a recipe for a constitutional crisis, and the destabilizing effects of such a crisis would reach into every aspect of our political, legal, and economic life. We emphatically urge the Florida legislature to reject HCR 1401, or at the very least to postpone decision on the Concurrent Resolution until the legislature has given careful and detailed consideration to the many potentially disastrous implications that accompany even an ambiguous call for a constitutional convention. The United States Constitution is the greatest political document since the Magna Carta. Much of this country's strength and international moral authority are attributable to the Constitution's careful balancing of rights, responsibilities, and powers. Joining a "Conference of the States" as defined in HCR 1401 is the first, radical step down a very slippery slope toward upsetting that balance. We urge you to resist taking that step. Sincerely, [signature] Steven G. Gay John W. and Ashley E. Frost Professor of Law [signature] Nat Stern Professor of Law
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