- The Washington Times
Monday, March 31, 2014

Michigan lawmakers last week voted to demand a balanced budget amendment to the U.S. Constitution, a move that could set into motion a never-tested, widely feared convention with the power to rewrite part of the founding document.

The lawmakers voted to ask Congress to call what is known as an Article V constitutional convention.

If Congress agrees with the count, Michigan is the 34th state to do so, creating the two-thirds majority required to force the historic gathering.

But plenty of questions remain unanswered: Is Michigan really is the 34th state? If so, will Congress respond, will the courts get involved in forcing a convention, and what happens once a convention begins?

“It’s a bunch of question marks,” said Gerard N. Magliocca, a law professor at Indiana University who has performed some of the key research on Article V conventions.

Among those questions is whether an application can be rescinded and how similar the states’ calls must be in order to be valid.

Article V of the Constitution is strikingly vague. It lets Congress propose amendments, but it also allows that “on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments.”

That second option has never been exercised. All 27 amendments to the Constitution have been proposed through approval by two-thirds of Congress, but Gregory Watson, a constitutional scholar, said Michigan’s application last week could test the other method under Article V.

Taking it back

By Mr. Watson’s count, Michigan is the 34th state to call for a convention on a balanced budget. The chief problem is that about a dozen legislatures have rescinded their states’ applications.

“There is disagreement among scholars as to whether a state that has approved an application may later rescind that application. If it is ultimately adjudicated that a state may not rescind a prior application, then Ohio’s 2013 application for a Balanced Budget Amendment convention would be the 33rd and Michigan’s 2014 application would be the 34th [out of the necessary 34] on that topic,” Mr. Watson wrote in an email.

Rob Natelson, who has studied similar conventions among the states or Colonies going back to the 17th century, said states always have been able to rescind calls for a convention.

That means, by his count, 18 states that have issued valid convention calls on a balanced budget amendment. He said Florida’s 2010 application could be considered the 19th, but the Legislature added specific language on federal limits to state spending that might not be similar enough for Congress to consider.

Ultimately, it’s up to a skeptical Congress to judge whether enough states have crossed the threshold, said Mr. Natelson, a retired law professor who is now senior fellow at the Independence Institute.

“Congress has to make that initial decision,” he said. “I think it’s unlikely that a request for Congress to call a convention at this point would get anywhere.”

It has been 43 years since the proposal of the last successful amendment: the 26th Amendment, which granted the right to vote at age 18. The states ratified the 27th Amendment on congressional pay increases, thanks in large part to Mr. Watson’s efforts, but it was actually one of the original amendments submitted to the states in 1789.

The proposed balanced budget amendment has been percolating for decades. Congressional Republicans held votes two years ago to send another version to state legislatures, but the effort fell far short.

Uncharted territory

Last year, dozens of state lawmakers gathered at Mount Vernon to develop strategies for a constitutional convention under Article V. One of those in attendance was Michigan state Sen. Mike Green, the sponsor of the balanced budget convention call that cleared his Legislature last week.

“It was an issue that was near to my heart. I just feel like we’re spending ourselves into oblivion,” he said.

Mr. Green said he also sees momentum in other states.

“I believe it’ll happen, and it’ll happen fast. I’m convinced we’ll have it done by the end of the year — have the call go out, have the 34 states onboard to make the call for the convention,” he said.

At that point, the United States would truly be in uncharted territory.

Legal scholars said it’s up to Congress to officially issue the call, but someone could go to court to try to force action on Capitol Hill.

Questions have been raised about whether a constitutional convention would be limited to considering only a balanced budget amendment or whether it could go broader. What is known as a runaway convention is a major fear for some opponents of using the Article V process.

They cite the precedent of the 1787 convention, which was called to amend and improve the Articles of Confederation but wound up scrapping them and sending the states a whole new constitution, the one in effect to this day.

Mr. Natelson said his scholarship indicates that a convention could be limited and that many of the other questions have been worked out in states that have held conventions.

“I don’t see a lot of unresolved issues as far as the actual convention process is concerned because we know so much from history and the prior case decisions,” he said.

Mr. Magliocca said one reason to pursue an Article V convention is to put pressure on Congress to act. Even then, he said, there aren’t any recent examples of success.

“At best, it’s one of many ways of drawing attention to an issue and building public support for something,” he said.

Matthew Spalding, vice president and dean for Hillsdale College in Washington, said holding a convention is a legitimate route to amend the Constitution, but there are serious reasons to be wary. He noted that a state-led constitutional convention has never been tried and many significant procedural and constitutional questions would have to be worked out along the way.

“Given the significant unknowns and the political stakes, and the fact that this will be litigated and fought legislatively throughout, I think there are serious prudential questions as to whether the effort to actually hold an Article V convention is one we should be pursuing at this time,” he said.

James Madison, known as the father of the Constitution, was dubious of the Article V convention process, he said, because of the unknowns and because there are better ways of bringing political change.

“The best answer is the one that’s always been in front of us, which is the electoral process,” Mr. Spalding said. “The way you change politics in America is to make an argument, build a consensus and elect better leaders that reflect that consensus. There’s nothing but political will currently preventing Congress and the president from balancing the budget.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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