My brief presentation is titled The Political and Legal Framework for an Article 5 Balanced
Budget Constitutional Convention.
We know from Rod's presentation and Mike's that two things, the severity of the crisis
is almost unimaginable, it's imminent, the Congress is incapable politically and structurally
of doing much about it, and the frameworks anticipated this type of political crisis
And they use that type of language, political crises, and that's why Article 5 and its
present form was included in the Constitution.
Because the states were supposedly sovereign, it would be a state response to a national
crisis.
Now how would we operationalize an Article 5 Constitutional Convention?
Now that's changed and the operationalization of a convention isn't necessarily what the
The framers had in mind, but it is what we're stuck with because the court has ruled on the matter.
The framers' intent behind Article 5 is clear and indisputable.
When two-thirds of the states apply for a constitutional amendment convention to propose an amendment
for three-fourths of the states to ratify, the United States Congress must convene the said convention.
However, the Congress does have discretion in the manner in which the Convention will
be convened, and it's in that discretion that presents some problems.
Because an Article 5 Convention has never been convened, there is neither historical
nor statutory precedent to guide the process.
The lack of precedent alarms many would-be well-intentioned supporters of a Convention,
Amendment Convention, to add a balanced budget amendment to the U.S. Constitution.
However, it also provides an unfortunate opportunity for supporters of the status quo, that is
unsustainable debt and political corruption, and that's what this debt is.
It's simply the symptom of political corruption, not only at the national but at the state
level and within the American political culture, to make nougatory what are the most effective
of Weapons and the Constitutional Arsenal to make government accountable to the governed,
the base government upon the consent of the governed.
Now there is, especially in the 1950s and 60s, there's precedent about this open constitutional
convention and the risk that the American public would incur as a result of getting
the states together.
It's a tactic used by those that support the status quo.
But I'm going to try to make clear that these alarmist arguments are specious.
In other words, the Supreme Court case in 1939, Coleman v. Miller and Senator Sam Irvin's
legislative blueprint for an Article V constitutional amendment convention, both of these make manifest
that the process would be constrained and effective.
In other words, the risk of an open-ended constitutional convention that would be anti-liberty rather
than pro-liberty is, I don't want to say irrational, but it's ill-founded.
In 1939, the United States Supreme Court set the parameters of its role vis-a-vis the Congress
in an Article 5 legal challenges.
The precedent-setting case in 1939 involved child labor laws, and I'm not going to go
into that, but the result of the 1939 case law is what's known as the Vitality Argument.
The Vitality Argument was based upon the following. From June 1924 to March of 1927, this amendment
had been rejected by 26 states, ratified by five. The state's rejections and failure of
and the ratification resulted in the loss of the proposed amendment's vitality and therefore ceased to be open to ratification in 1937.
In other words, too much time had lapsed between the introduction petitioning the Congress to convene a constitutional convention and when they reached the requisite two-thirds.
In other words, the movement had lost its vitality.
In other words, the lapse of time resulted in a de facto rescission of the proposed amendment.
Now running for the court, Chief Justice Hughes addresses the following issues about an Article 5 constitutional convention.
And I'm presenting it in a series of questions.
Can ratification by state legislatures of a proposed amendment once given be rescinded?
And the court said no, it cannot.
Once a state legislature petitions to Congress and or ratifies, those actions cannot be rescinded by subsequent state legislatures.
Second, can rejection by state legislatures a proposed amendment be subsequently ratified?
Yes, they can refuse to approve ratification, but they can subsequently approve.
A newly elected legislature or a new legislative session can approve it. The court said that's acceptable.
Third, if ratification is by state conventions, having adjourned and signing die, can the
conventions be reassembled to ratify or reject a proposed amendment?
The court says no.
The reason why this is important, there are over 300 petitions to the United States Congress
from the states for constitutional convention for a balanced budget amendment.
Over 300.
Can a proposed amendment lose its vitality through the lapse of time?
Chief Justice Hughes asserts that this is the more serious question.
After addressing the merits of and providing suggestive answers to the various questions,
the court concluded that the issues are ultimately non-justiciable and thereby political questions
for the United States Congress to resolve.
In other words, you can't go to the court and say that the Congress is not responding
to the petition.
That falls under, since 1939, the Political Questions Doctrine.
So here you have the Congress that's refusing to balance the budget.
The states respond by petitioning the Congress to convene a convention for a balanced budget
amendment, but it's up to the Congress whether or not to recognize those petitions.
In its concurring opinion, Justice Black, joined by three other justices, went even further.
Because the case is non-justiciable, the case should be dismissed because the petitioners
lack standing to sue, because the court, under the ash-winder rules of the Tennessee Valley
case, authority case, said that the court cannot address political questions.
These justices contended that the Congress has, quote, exclusive constitutional authority
over submission and ratification of amendments.
Even though Article 5 says they shall convene a convention, the Court says now they have
discretion whether or not to convene.
In his long dissenting opinion, Justice Butler argued that the issue of what constitutes
a reasonable time and affect the application's vitality for ratification is justiciable.
In this particular case, he agreed with the petitioners that a reasonable time had elapsed
and that the 1937 Kansas ratification of the amendment was null and void.
Only the 20th and 21st amendments have time limits for ratification and those are amendments
that were proposed by the Congress, two-thirds of the Congress, three-fourths of the states
had to ratify.
Under this interpretation, the 27th amendment to the U.S. Constitution would not have been
ratified if the Congress had decided to block ratification because that goes back to 1791
Actually, 1789 wasn't ratified until the mid-1990s. Vitality has been lost.
But it also makes clear that the hundreds of outstanding applications for constitutional
amendment conventions, including those for a balanced budget convention, could and probably
would be dismissed as lacking vitality. So even though you have all these outstanding petitions
by the states to convene a constitutional convention, the Congress can ignore them.
under this 1939 decision that they're old, they're stale, they don't really reflect
the will of the states that made those petitions to the Congress.
The political question doctrine is a slippery juristic concept. Dating back to 1796, the
Supreme Court has invoked the doctrine in varying circumstances. Political question
Constitutional criteria include A, the Constitution has assigned the issue to another co-equal
branch of the government, in this case the Congress. B, there is not a judicial remedy
for the controversy. If the Supreme Court says convene the Convention Congress and Congress
ignores, the Court has no way of enforcing it because the President is outside the loop.
The President is not involved in a Constitutional Convention. It just requires a resolution
by both branches of the Congress.
C, a judicial decision would bring another branch of government into disrepute.
In other words, it would be embarrassing the Congress.
Justice Brennan referred to these criteria as the analytical threads necessary to determine
if an issue falls under the political question doctrine and therefore is non-justiciable.
You can't go to the courts for a remedy.
The relevance of the political question doctrine for Article 5 is that the Court has decided
It lacks jurisdiction over the amendment process. In other words, the political arena, not the
judicial, will decide the issue. However, the court may change its mind, as it did regarding
legislative apportionment in Baker v. Carr when it reversed Colgrove v. Green. In other
words, it could reverse Coleman v. Miller, but that's highly unlikely, highly unlikely.
In that reversal, the writing for the majority, writing for the majority, Justice Brennan
and specifically cites Coleman v. Miller as precedent, reaffirming that controversies
pertaining to amending the Constitution are political and therefore outside the court's
jurisdiction.
Now, what I'm getting at is that the only check on the Congress is not the other branches
of the national government, it is the states, the states.
And even if they were participants in checking the Congress for not acting under Article
Article 5 mandates, it's highly unlikely that the Congress would do it anyway.
The significance of Coleman v. Miller for a balanced budget constitutional amendment
convention is profound. First, under the well-established political questions doctrine, it confers on
the U.S. Congress the political discretion to convene an Article 5 constitutional amendment
convention today if it had the political will to do so. In other words, depending upon how
How you read the language of the petitions to the Congress, there are the requisite 34
states that have petitioned the Congress to convene a constitutional convention. The Congress
just has to pull the trigger. It's up to their political discretion. So if they wanted to,
we could have a constitutional convention for a balanced budget amendment next week,
but it's not going to happen for political reasons.
Dating back deep into the 19th century, there are literally hundreds of outstanding applications
for Constitutional Amendment Conventions, as I mentioned, there are over 300. So they
can, with those 300 outstanding petitions, they can convene a convention and restrict
the convention to a balanced budget amendment. The time lapse vitality standards set forth
in Coleman v. Miller makes those outstanding applications null and void. This includes
the over 100 petitions that have been submitted by the states to convene a constitutional
for Balance Budget Amendment Convention.
Well in excess of the 34 states there currently
that's required by Article 5.
Let me move on over to the statutory response to this.
In other words, the Congress,
we have to depend upon the Congress.
Now, I have an answer to that.
If the Congress won't act responsibly,
the states are still sovereign,
and if a state doesn't like the crisis,
the impending imminent crisis,
and they could resort to another constitutional remedy and that's secession, but that's a separate paper and a separate issue.
Under the status, this, the lack of an Article 5 Convention President became an issue in the wake of the US Supreme Court decision in Reynolds v. Sin,
that was the sister decision of Baker v. Carr, the malapportionment cases.
Soon after Reynolds, 32 states applied for a constitutional amendment convention.
The proposed amendment for the convention to address would have permitted the states to apportion one of its legislative chambers on a standard other than population, as was prior to Reynolds v. Sin, 1964.
As explained by Senator Irvin, the proposed legislation that he introduced, Irvin and Representative Tuck from Virginia, they were going to give the statutory framework in which the Congress would act.
This is what Senator Ervin stated.
Most distressing of all was the apparent readiness of everyone to concede that any convention, once convened, would be unlimited in the scope of its authority and empowered to run rampant over the Constitution, proposing any amendment or amendments that happened to strike its fancy.
So he's dealing to this political backlash of those who didn't want to convene a convention
because they wanted to move the country more and more towards this notion of democracy
based not upon geography but based upon sheer numbers.
As Senator Irvin correctly pointed out, nothing could be farther from the truth and quote,
that interpretation is supported by neither logic nor constitutional history.
In 1968, Senator Ervin drafted a bill titled the Federal Constitution Convention Amendment Act.
Its purpose was to provide procedures for calling the Constitutional Conventions for proposing amendments to the Constitution of the United States
on application of the legislatures of two-thirds of the states pursuant to Article 5 of the Constitution.
The Act was subjected to numerous committee hearings and markups.
Although drafted in the late 1960s, it covers all contingencies and should serve as a model
for a balanced budget constitutional amendment convention in 2012.
It is important to keep in mind that an Article 5 constitutional amendment convention has not
been invoked and therefore neither historic precedent nor a requisite statutory enabling
legislation has been passed.
Nevertheless, thanks to the heroic efforts of Senator Ervin, the blueprint for moving
Moving forward has been drawn and should be utilized. In other words, we have the proposed
resolution from the Senator from North Carolina. We have to get it passed by the Congress.
It fleshed out all the ambiguities of a yet untried constitutional remedy to an imminent
public policy crisis, in this case, the impending crisis stemming from the national debt. It
It provides a framework for moving forward and thereby abating the primary concern surrounding
the Constitutional Amendment Convention that it would be a constitutional nightmare.
In other words, you get the people together, you open up Pandora's box of rewriting the
entire Constitution.
This scares people.
It makes them afraid of exercising their Article 5 prerogatives.
The argument that an Article 5 Constitutional Amendment Convention would be open-ended and
Result in a Constitutional Nightmare is a red herring for two reasons. First, the parameters
for what a constitutional amendment convention can and cannot do are predetermined by the
Congress, by Senator Irvin's legislation. And second, the status quo is tantamount to
a constitutional crisis as the U.S. government's unwillingness, or more precisely, incapacity
The control spending jeopardizes constitutional property rights.
Regarding constitutional property rights, consider the normative perspectives of a prominent
frame of the Constitution with that of a prominent liberal on the U.S. Supreme Court.
The U.S. Constitution's firewalls designed to protect private property have been overrun
by the political process utilized to transfer wealth from the producers of prosperity to
the consumers of government pork.
The transfer involves not merely revenues on hand, but future revenues necessarily committed
to repayment on the national debt.
Contrast Madison's admonition in Federalist Number 10 that the first object of government
is the protection of private property.
The first responsibility of government is to protect private property.
With U.S. Supreme Court Justice Brennan's that, quote, the government's interest in
and Conserving Fiscal and Administrative Resources is outweighed by welfare recipients' property
interests inherent in the Due Process Clause of the Fifth and Fourteenth Amendments.
And this deals from administrative case law and some cases that the Supreme Court decided
in the 1970s.
In other words, fiscal responsibility is outweighed by welfare recipients' property interests
Inherent in the 5th and 14th Amendments, this is what he wrote, from its founding,
this is Justice Brennan, from its founding, the nation's basic commitment has been to foster the
dignity and well-being of all persons within its borders. No state's rights, no state sovereignty,
no state prerogatives in protecting private property. The national government is responsible
for the Dignity and Well-being of All Persons within the United States.
He continues, We have come to recognize that forces not within the control of the poor
contribute to their poverty. This perception against the background of our traditions has
significantly influenced the development of the contemporary public assistance system.
Welfare, by meeting the basic demands of subsistence, can bring within the reach of the poor
the same opportunities that are available to others. Whereas Madison contended,
the diversity in the faculties of men from which the rights of property originate is not less an
inseparable obstacle to a uniformity of interest. The protection of these faculties, once again,
is the first object of government. The protection of the different and unequal faculties of acquiring
of Property, the possession of different degrees and kinds of property immediately results.
And from the influence of these on the sentiments and views of the respective proprietors ensues
a division of society into different interests and parties.
Now if according to Madison, property rights originate in men's diverse faculties, the
protection of this diversity is the first object of government, where does Justice Brennan
can get his notion that the national government has the constitutional authority to, quote,
bring within the reach of the poor the same opportunities that are available to others,
end of quote.
Now, the reason I'm mentioning this is that the political class is opposed to a constitutional
convention for a balanced budget amendment for two reasons.
First of all, they know without convening a constitutional convention, you'll never
have fiscal responsibility. It's secondly that there's this responsibility for the
national government to accumulate as much property and wealth as possible in order to
redistribute it. Now I think I'm out of time, but I have a couple more when I am out of
So, but I do, I have the bill that Senator Irvin introduced, and that's, unfortunately,
we have to rely upon the Congress to convene a constitutional convention, not for constitutional
reasons, but for political reasons, to allay the fears that it would result in an open-ended
convention.
Thank you very much.