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Oct 15 2013

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Constitutional Convention Buzz: Good or Bad Idea?

A Michigan proposal petitioning Congress to convene a Constitutional Convention to consider a Balanced Budget Amendment, Senate Joint Resolution V, was introduced in May of this year and will be up for a Committee vote TODAY:

Government Operations

DATE: Tuesday, October 15, 2013

TIME: 1:00 p.m.

PLACE: Rooms 402 and 403, Capitol Building,
100 S. Capitol Avenue, Lansing, MI 48933

PHONE: Teri Ambs (373-3543) Committee Clerk

Howard Chandler Christy's Scene at the Signing of the Constitution of the United States

Howard Chandler Christy’s Scene at the Signing of the Constitution of the United States

Understandably, any constitutional amendment and/or convention proposals spark vigorous debate, whether they come through legislative measures, an organized effort by a political organization, or a P.R. splash connected with a new book.

The current proposal in the Michigan Legislature is no different; a rash of emails, for and against, are now making their way around the activist circuit.

Since the Senate Committee vote is today and time is short, we’re presenting very basic information and a quick assessment. We hope to publish more in the near future, as time allows.

The basics:

Article V. of the Constitution provides a mechanism for states to propose amendments – that language is shown in bold:

Article. V.

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;…”

If 34 states petition Congress to convene a Constitutional Convention, such convention must occur (note the inclusion of “shall” versus a discretionary “may”).

Senate Joint Resolution V petitions or makes application to Congress to convene such a convention for the “limited” purpose of proposing a Balanced Budget Amendment.

A bullet-point assessment of Senate Joint Resolution V:

* As separate proposals, a Balanced Budget Amendment or application to convene a Constitutional Convention present numerous concerns all their own. Presented together, as they are in Senate Joint Resolution V, they present a troubling legal tangle which can and should be avoided.

* Since a Constitutional Convention has never been convened, there are numerous unanswered questions which should be explored, planned for / and remedied prior to taking any action which would result in one taking place.

  • That doesn’t mean that a Constitutional Convention or amendments should be rejected permanently (see bottom of this article).
  • Unanswered questions regard how a Convention would be conducted, what rules would be used, whether the scope of authority can be limited, and how delegates would be chosen.

* 32 states passed identical or very similar legislative resolutions 1975 – 1983, very nearly triggering the convening of a Convention to consider a Balanced Budget Amendment, resulting in…

  1. A long list of legal questions – in addition to those which exist, generally, about an Article V Convention – including, potentially (depending upon which legal arguments you believe), that only two more states need pass such resolutions to trigger the convening of a convention.
  2. Preemptive action by Congress, including passage of a Balanced Budget Act and a series of other measures, provide ample evidence of how difficult it is, for political, practical, and Constitutional reasons, to craft, execute, or make permanent, balanced budget provisions.

* For any readers frustrated by the recommendation against Joint Resolution V or those desiring additional information, I highly recommend a read of “A Balanced Budget Constitutional Amendment: Background and Congressional Options” published by the Congressional Research Service in 2011. The document provides a very thorough and well sourced history of the subject at hand, when analyzed as a whole, provides evidence for the recommendation against the current Senate resolution.

* Other means, some simple, some not, stand a much better chance of effectively reining in government spending. Pursuit of a Balanced Budget Amendment uses up time and resources with very little probability of reaching the stated goal.

* Many STATES, including Michigan, have “balanced budget” provisions in their Constitutions, either originally or through amendments. If these measures are effective, how is it then, that Michigan and other states with “balanced budget” ‘requirements’ have debt 1One source reports $124,496,677,000 in debt at the end of FY 2012, including, among other things, unfunded post-employment benefit liabilities and unfunded pension liabilities.

Remember when your mother said, “People in glass houses shouldn’t throw stones”?

michigan debt clock 0252am october172013

Just one way of showing that states such as Michigan do have debt, despite Constitutional provisions to require a balanced budget. The “Michigan Debt Clock” as of 02:52 AM October 17, 2013. Click image to visit site and see current amounts

* Beyond illustrating how to circumvent Constitutional requirements to balance a government budget, state lawmakers could fill a whole season of TV episodes for a show entitled Stupid Budget Tricks, as detailed in a 2011 City Journal article “State Budget Bunk”. Unfortunately, budget hocus pocus approved by Michigan legislators were included among the examples of maneuvers almost guaranteed to bite taxpayers in the near and distant future.

* STATE legislators, if serious about reducing federal deficits and debt, could assist in reducing spending by reducing their own reliance on federal funds. Did lawmakers reject all of the “Stimulus” funds in 2009 and 2010? Of course, not. Michigan received nearly $7 billion.

* A true sign of seriousness would include an IMMEDIATE curtailing of any new programs that involve federal funding, such as MEDICAID EXPANSIONAccording to one analysis, Michigan received 36%+ of its General Revenue in FY 2011 from federal government. And this estimate very likely understates the percentage. 2

Federal-Aid-to-States_FY_2011

Click to see larger maps 2008 – 2011. Source: StateBudgetSolutions.org

* Michigan State Senators who support (especially those who introduced or sponsored) Joint Resolution V, should be questioned closely regarding their knowledge of the history and legal issues. Thorough questioning would likely reveal:

  1. Ignorance of important facts; OR
  2. Lack of seriousness in the effort (seeking political kudos);  OR
  3. Disturbing willingness to venture into uncharted Constitutional territory.

* Finally, the best thing about Joint Resolution V is that it provides an opportunity for consideration and debate, particularly of the following…

1. Reconsideration of a long-held belief by many conservatives that the Constitution “is fine as is”. It’s not the the Founders were wrong or that the Constitution, as written was flawed, it’s that the Constitution’s power to limit government has been eroded by judicial rulings, which have become precedent, lack of challenges to questionable or blatantly unlawful government actions, and legislators’ (Congress and state) and other politicians’ use of judicial rulings as political cover, instead of readdressing tough issues with corrective legislative measures 3.

2. Constitutional amendments aimed at clarifying language which limits government (i.e. inclusion of an explicit definition of “to regulate commerce”) and the repeal (i.e. 17th Amendment) or rewriting of some later amendments (the 14th Amendment), may very well be the only remedy for numerous problems.

3. Since the Constitution, as written, only provides one way for the States to propose amendments to the Constitution – a Convention – focusing on an effort to clarify the lingering questions regarding that process and to allay concerns, seems like a worthy use of time by those truly interested in solving problems.

REFERENCES & CITATIONS:

Notes:

  1. One of the links provided in the text of the article is to a document produced by TruthinAccounting.org, which demonstrates Michigan’s indebtedness, including $17.7 billion in bonds issues and $14.2 billion in other liabilities. Bonds are debt as they must be repaid. The report asserts, essentially, that accounting tricks which wouldn’t be kosher in the private sector mask the the level of state debt
  2. As some readers may be aware through reading recent GiM articles, I’m the founder of Grassroots in Nebraska. In working together for nearly five years, Joan and I have seen repetitive patterns in both of our states in most issues. We’ve learned more by sharing and comparing information. Talking about state budgets and federal funds is precisely the sort of topic that illustrates where joint knowledge is instructive. In closely monitoring and researching the subject of Nebraska’s budget over the past four years+, we’re aware at GiN, that as of the end of FY 2011, Nebraska had received an average of 40% of its budget from federal funds for several years running, not including federal funds received for the University of Nebraska system, which exceeds $1 billion in federal funds. While it could simply be the calculation stated (percentage of General Revenues) driving what I know is a nearly 4% discrepancy for Nebraska, readers should note that the 2011 percentages for our two states are nearly identical, according to this map, which very likely means, Michigan’s annual federal funds as a percentage of the budget could very likely mirror Nebraska’s, and too, that figure also likely doesn’t account for federal funding to your state’s University system. Finally, at GiN, we’re still assessing the percentage of the budget derived from federal funds now that the majority of the 2009 ARRA / “Stimulus” funds have run out. Receipt of those funds did increase states’ percentages by several points 2009 – 2011. See NebraskaSpending.gov for recent and historical Nebraska figures.
  3. To clarify, had the U.S Constitution been consistently applied as written according to its original meaning by judges, we’d not have nearly the number of problems we do today. The subject of how, when, and in what regard judges deviated from this consistent practice is too lengthy, for sure, to tackle via footnote. Regarding politicians’ use of court ruling as political cover, one example that would make this point clear is the Kelo v. New London case, wherein the U.S. Supreme Court ruled that state legislatures had the power to determine the definition of “public use” and whether or not it could include “economic development”. The media reported the Supreme Court decision as definitively supporting the use of eminent domain for the purpose of “economic development”, which is inaccurate. The Court ruled such because Connecticut state law included that purpose in its “public use” definition. While some state legislatures did move to change state law following that 2006 case, some did not, citing that the Court’s ruling was definitive. In other words, Courts have more power than they should, in part, because legislators abdicate. Finally, this principle applies to the health care law. The Supreme Court’s ruling in NO way precludes Congress from readdressing the entire legislative scheme.

Permanent link to this article: http://grassrootsmichigan.com/?p=3788

2 comments

  1. foavc

    The author makes one mistake in his story. He assumes applications must be for the same subject. The Supreme Court has ruled (U.S. v Sprague 1931) that no such addition is permitted in Article V. In short, unless the article says it, it does not exist. Article V requires a convention call when two thirds of the state legislatures apply. You can read the 746 applications from 49 states at http://www.foavc.org. Currently before the Congress is a petition asking Congress what their official count of applications is. According to Kirk Boyle, Legal Counsel to the House of Representatives, Congress has never consented to being bound by the terms of Article V by naming someone to count the applications therefore is not obligated to do so.

    This explains why there has not been a convention. And, the author is incorrect regarding the number of applications for a balanced budget. When combined with applications for a general convention the number of apps is 36. However, as the Constitution only demands a certain number of applying states, that fact is immaterial save for the fact three such subjects in total have reached the two thirds mark. So, regardless of what you believe or argument presented, Congress is currently obligated to call. They just don’t want to and have formally asserted their right not to obey the Constitution.

    1. Shelli Dawdy

      Thank you for the interest in the article and for taking the time to comment on it.

      I appreciate your perspective on the subject and understand why you disagree. I think it would be accurate to assert that I could have been more detailed in my article regarding one whole aspect of this subject which covers what you’re pointing out as mistakes, however, the article seemed plenty long already.

      First of all, regarding the number of states which have applied to Congress for a Balanced Budget Amendment, I wrote:


      32 states passed identical or very similar legislative resolutions 1975 – 1983, very nearly triggering…

      Note that I added bold here. The number I cited – 32 – was for the period 1975 – 1983. One of the sources I looked at for this information is the Congressional Research Service report I referenced in the article, which I’ll also link to HERE. On page 26, there is a table which breaks down the states which applied to Congress and the date. As the report notes, four other states did enter applications, but they were for deficit reduction and didn’t include a Constitutional Convention element.

      Also, there were a few states who did enter applications later, however, there were a number of states, two in 1983 or 1984, and in years following, ten more, which sent a resolution to rescind their previous applications.

      There seem to be some questions that arise from that fact, but they’re not the only ones.

      While I might agree with the sentiment of reading the law and applying it as written, which is to some extent an idea embodied, in part, in what you cited from that 1931 case, as someone who subscribes also to the concept of original meaning, the context matters. Like other Supreme Court rulings from the 1930′s, I do wonder if Sprague was a damaging ruling. Since the ruling empowers Congress regarding Article V conventions to the extent that it does, that seems to violate one of the important objectives for Article V, considering the context in which it was written. States were provided an outlet for amending the Constitution in the event of a recalcitrant Congress. Some analyses of Sprague state that Congress can decide the manner of ratification.

      There is no way to have this matter both ways. If you support the ruling in Sprague, you support considerable (and I and others say too far-reaching) Congressional power over Article V. How considerable is one of the many matters over which one can debate, but it doesn’t bode well for intervention by courts if Congress oversteps.

      No matter what, there are many questions and divided opinions regarding the answers. That CRS report and other sources point out that there is no legal agreement on a myriad of issues, which are too numerous to list here, but, suffice to say, the disagreements involve most of what you’ve pointed out.

      For myself and for many other people, there are too many unanswered questions at present. Considering that James Madison himself was clearly very uncomfortable with the Article V language…

      James Madison did not oppose reintroducing language permitting the convention amendment process, but expressed prescient concerns about the lack of detail in Article V regarding how the convention amendment process would work. Madison stated that “difficulties might arise as to the form” a convention would take.

      ~ from the Convention record, HERE.

      …I’d like to see some preliminary action clarifying this issue, such as a “Madison Amendment”, which clearly lays out the states’ power to amend for limited purposes, etc., before supporting a Constitutional Convention. I am in support of one, but not under the present murky circumstances.

      Again, I thank you for taking the time to comment,
      Shelli

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