Michael Wolfe

Study up. Stand up. Speak up. Pray up!

Balance the Budget, Change the Constitution?

Posted by americana83 on November 20, 2012

Alec has joined with others to call for an Article V Convention, and promises a way to a safe and limited convention which only addresses the issue of a balanced budget amendment. Before considering the argument, it would be best to look at the Constitution itself to see what legal limitations are placed on such a convention:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The first section of article V addresses the familiar method of constitutional amendment, which has been done many times since the founding. Article V has really only actually been done once before, and then under the auspices of the previous constitution: the Articles of Confederation, which shows us how a convention goes.

Simply speaking, according to article V, 2/3 of the states apply to the congress, which then proceeds to call for a convention to propose amendments. After this, they must be approved by the legislatures of 3/4 of the states, OR by conventions, depending on which method is proposed by the Congress.

A straight forward reading of Article V shows that the only limitation placed upon such a convention, is that the international slave trade could not be abolished prior to 1808 and the states cannot be deprived of equal representation in the senate without their consent. That is it. Any promises of any other imposable limitations do not pass constitutional muster. Article V provides an escape hatch up to and including a complete rewrite of the Constitution. Since the founders were conducting a great experiment, there had to be a way to completely revise it if it proved unworkable or had some great defect. Article V provides the means for a peaceful political revolution. However, history has shown us now that the Constitution had no fatal flaws, and the need for “fundamental change” is greatly exaggerated. In fact, it is a lack of adherence to the existing Constitution which leads to a seriously out of control spending spree and an ever expanding and more intrusive government. This is NOT an article V scenario. This is an issue that can only provide the illusion of being addressed by a “balanced budget amendment, seeing as the government flouts the existing amendments regularly. Conservatives are not living in reality if they believe that they can prevent or negate what would surely be a considerable progressive influence in any convention. New York, the beltway, California and other large progressive centers would not doubt demand and receive due influence at any such convention, as well as progressives at large, such as the successors of ACORN and the various progressive think tanks such as the Tides Foundation, Center for the American Way, and the Council on Foreign Relations. Also, a Constitutional convention would provide a unique opportunity for team Obama to legally implement the fullness of his promise to “fundamentally transform” this country.

ALEC, the usually Conservative leaning American Legislative Exchange Council is actively promoting the idea of an Article V Constitutional convention as a safe and limited method to push through a balanced budget amendment and save the country. Throughout their work on the matter, they make constant reference to support for the balanced budget amendment in their push to compel people to embrace the idea of an Article V Convention. They then quote the heritage foundation, who managed somewhere in article V of the US constitution to find a limiting mechanism and appealing to “authorties” rather than to the actual text of the amendment:

“Worries [regarding a run-away convention] are based upon a misperception of the nature of an Article V convention and of the safeguards built into the amendment process. A wide variety of authorities, including a special study committee of the American Bar Association, point out that a convention legally can be limited to a particular subject. These limitations can be enforced by Congress or by the courts. A convention also would be constrained by a range of political factors, including the election of its delegates.
They bill the convention as the ulimate exercize of state’s rights, yet proceed to state:
Congress must designate whether state legislatures or state ratifying conventions are to ratify the amendment. This gives Congress a tool to stop, in effect, any amendments that exceed the convention’s charge.
And then despite vehement protest against labeling this movement for a convention a constitutional convention, they cite this (and ironically right after saying congress has a tool to stop amendments from the convention!):
the framers of the Constitution wisely intended the convention method to be a vital counterweight to the powers of Congress to block amendments. As the campaign for direct elections to the U.S. Senate demonstrated, the threat of a constitutional convention sometimes is necessary to force consideration of amendments that challenge the self-interest of Capitol Hill lawmakers.
In effect conceding it is a constitutional convention, while still denying it, and saying it is the highest states rights while saying congress can block it… all these quotes come from the PDF file Addendum: Other Questions (regarding the Article V Constitutional Convention).
The main PDF from ALEC, “Article V Handbook” goes through great pains to ease the concerns about an Article V Convention. It simply rejects as “inaccurate” the body of work explaining the full scope of power afforded to a Article V Convention, before concluding that, “there have been a few solid studies of the process, and the recommendations in this Handbook are based on their research and conclusions” Of course, their handbook is the result of the only good studies, and does not have an agenda, as those shady anti-convention people do. This is dishonest and unfair, especially since they ignore that there is nothing in the text that limits the topic of the convention and conceding in the Addendum that a convention can set its own rules. Either this Convention has the power to fundamentally change the constitution or it is severely limited. To ALEC, it is both things simultaneously which is impossible. In summary to the first portion ALEC says to note:
• The principal reason for the state application and convention process is to enable the states to check an oppressive or runaway Congress—although the Constitution does not actually limit the process to that purpose.
• The Framers explicitly designed the process to enable the states to substantially bypass Congress.

Given that congress is still involved in the convention process, it seems incorrect to assert the purpose was to thwart a “runaway congress,” but rather to check the advances of a runaway executive. Does it make sense to involve the abusive party in the process? Remember, the founders had much more concern regarding the executive, as opposed to the legislature. The second bullet point is just not true. The petition goes to congress for congress to call the convention, and the ratification process is chosen by congress. Does that really sound like “substantially bypassing” congress? ALEC then takes comfort in the idea that the Supreme Court will enforce the rights of state legislatures, and again asserts the myth of substantial bypass of congress. No one is entitled to their own facts, or to amend the words of Article V to say something that they absolutely do not say. They then go on to specify how states can apply to Congress (the one they claim the states are bypassing!) for a convention, designating open and limited petitions. Unfortunately for ALEC, there is no such distinction in Article V, which only allows for opening up a “Convention for proposing Amendments.”

They then invent a legal fiction which DOES NOT exist in article V, that the applications must be on the same topic. They repeat this multiple times, though again, a straight forward reading of Article V does not in any way place this limitation on the Amendments Convention. On page 14 of the Article V Factbook, this legal fiction is explicitly stated as fact:

The Constitution assigns Congress a routine duty it must perform. It is important to note, however, that congressional receipt of 34 applications is not sufficient; those applications must relate to the same subject matter.
It merely says on the application of two-thirds of the states. It doesn’t matter if the calls are for a balanced budget amendment or calls to abolish the right to bear arms or put Carbon taxes into the Constitution Once two-thirds of the states have sent petitions in, it is time for congress to act.
They repeat it again on the same page: The power to “call” an interstate convention authorizes Congress only to count and categorize the applications by subject matter, announce on what subjects the two-thirds threshold has been reached, and set the time and place of the convention.
They also assert another legal fiction after stating some evident truths:
Accordingly, a convention for proposing amendments has no authority to violate Article V or any other part of the Constitution. According to the rules in Article V, the convention may not propose a change in the rule that each state has “equal Suffrage in the Senate,”12 nor may it alter the ratification procedure.

There is nothing in Article V that prevents an amendment from adjusting the ratification process. They then discuss precedent in delegate selection, but the ultimate truth is that each state will do what it wants. This presents some difficulties for the professed purpose.

Alone, progressive radicals do not have the numbers to call for their own convention, however, through California’s radical legislature and some other states, they could easily pose a strong influence on any convention. ALEC talks as if the convention will take place in a conservative vacuum where Alinsky radicals are not allowed and a strict-constructionist anti-communist mindset are not allowed. Liberals have plenty of ideas to “balance the budget,” even if it is only for the purpose of making grow even more.

They then go on to attack those who oppose the Article V convention’s use. I would agree in a sense, though not how they intend. There really can’t be a runaway convention. Because barring the topics of equal representation in the senate and the now passed deadline regarding importation of slaves, the Convention can propose as many and as varied of amendments as it wishes. It can even end run hostile legislatures in the states if Congress opts for “conventions” for the purpose of ratification.

Many of their claims of safety stem from the myth of a Convention limited by topic, and ironically also hinge on a Supreme Court STRIKING DOWN a federal Constitutional Amendment (or amendments!) ratified by 3/4 of the states.

Article V is for proposing changes to the Constitution. We do not need fundamental change. The experiment which the Founders hedged all on has been a success, and would still be so today if we held our government accountable to following it. Congress has made laws violating their limits (EG light bulb bans, healthcare mandates). Congress and the president have both set up government bodies that go beyond the jurisdiction of federal powers (Department of Education, TSA, HUD, EPA, etc though such bodies MIGHT find a home at the state level depending on the state’s constitution and laws). Congress and the president have set up huge unconstitutional wealth redistribution programs for the purpose of buying votes and expanding federal power under the guise of “fairness” or “charity” Congress would ignore any Balanced Budget Amendment with teeth, and would only embrace one which had an escape hatch that could let them continue to spend how ever they want, just like this one. See my article addressing it specifically here.

In short, if we want to fix this problem, we can only solve it by fixing who we send to Washington. We do not need to edit our constitution via convention. We do not need a balanced budget amendment. We DO need a drastically REDUCED federal budget that will allow us to pay down the debt and then reduce taxes across the board.

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