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April 22, 2011

The States Must Restrain the Federal Government

By Mac McDowell
Three reports have been released this month that all come to the same conclusion; we, as a nation, are about to go down the drain economically if the Federal Government cannot bring its spending habits under control.  First it was the Pew Charitable Trust with its addendum to the No Silver Bullet report; then the International Monetary Fund's World Economic Outlook; and finally Standard & Poor's Ratings Service which lowered its long-term outlook for the United States' sovereign debt to "Negative" from "Stable."  But this is old news as far as reports go.

Last July the Congressional Budget Office issued a report that compared the United States with Greece and Argentina.  The report, entitled Federal Debt and the Risk of a Financial Crisis, said that financial collapse could happen suddenly and without much warning.  But even this report was out of the starting gate late.  Fiscal conservatives have been saying this as far back as the Reagan Administration.

Despite the deafening chorus of think tank harmony (a rare event indeed), liberal pundits and administration officials are denying the reality of the risk.  The danger here is that they all probably believe their own propaganda over the well researched studies from these reputable organizations.  They call that denial.

For more than twenty years the federal government has been acting like Charlie Sheen on a binge, and it is time for the states to perform an intervention.  The tough course of action is to call for an Article V Convention (AVC) to pass a balanced budget amendment to the U.S. Constitution.  But what does that mean?

Article V of the Constitution says that there are two ways to amend the Constitution.  The one that has been successful so far is that both Houses of Congress must pass a resolution with the exact same language by a two thirds majority.  Once that resolution has been passed, then that resolution is sent to the states where three quarters of the state legislatures pass the amendment (or not).  Once that is done it becomes an amendment to the U.S. Constitution.  This method has been followed successfully twenty-seven times for over two centuries.

The other method has never actually been used. However, the language in Article V is very clear:

... 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[.]

The last three words here are significant.  Article V is not an Article for calling a Constitutional Convention (Con Con).  It is for amendments only.  An AVC is very limited in the scope of what it can do.  Any AVC must comply with the spirit and intent of what the founding fathers meant.  Alexander Hamilton wrote in Federalist Paper Number 85 a very clear intent about Article V of the Constitution, in the third to the last paragraph he writes:

... it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.

Hamilton's words here are not only insightful but almost prophetic.  But Hamilton was not the only Founder that pondered this question.  James Madison also wrote in Federalist Paper 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

Madison also wrote:

A constitutional road to the decision of the people, ought to be marked out and kept open, for certain and great extraordinary occasions.

Madison explains in greater detail why Article V was included in the Constitution:

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

The question that faces us all is whether fourteen trillion dollars in debt is enough of an "extraordinary occasion" as Madison puts it.  The debt is piling up at a rate of $4.2 billion a day.  By the end of this year we will be fifteen and a half trillion dollars in debt as a nation.

But what about a "run away Con Con" as the folks at the John Birch Society warn against?  Article V is clear about that too.  Any amendments that are offered out of an AVC must be ratified by three quarters of the states.  This means that just 17 states are needed to veto any amendment offered by an AVC.  The exact language is unmistakable:

... 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 ...

The dependent clause states "part of this Constitution," not a new Constitution.  The clarity here is profound.  But there are more recent interpretations of the meaning of Article V.

In 1979 the U.S. Department of Justice, under Jimmy Carter, studied the question at the request of the Attorney General of the United States.  This resulted in a memorandum opinion for the Attorney General, Number 79-75.  Like most Washington Memos, this one is close to finding a cure for insomnia, however, if you read far enough into the document you will stumble across a gold nugget of truth:

The question we must answer is whether there are circumstances in which the procedures mandated by Article V may operate in such a way as to confine the constitutional power of an Article V convention to a given field.

The memo goes on to answer the question:

We will state our conclusions in advance. First, we think that if a convention for proposing amendments were called under Article V, the constitutionally mandated procedures would operate to deprive the convention of power to make constitutionally viable proposals except with respect to subjects within a predetermined field.

Plainly, the Justice Department agrees with the Founders that an AVC has limited scope and authority.  But are there any other Amens to be heard from the inside-the-beltway congregation?  Indeed there are.

In March of 1988, during the Regan Administration, the Heritage Foundation published Background Paper #637.  That document, entitled "Amending the Constitution by the Convention Method," also concludes that an AVC has limited scope and authority:

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 the courts. A convention would also be constrained by a range of political factors, including the election of its delegates.

The paper goes on to say:

Given these strong safeguards, a convention would be far less able to ‘run away' with the Constitution than Congress itself, which may propose amendments at any time and on virtually on any subject.

Despite the weight of all this scholarly research there remains opposition to an AVC.  Perhaps the words of George Washington address this blind opposition the best.  In a letter written to his friend, John Armstrong, in April of 1788, Washington addresses the resistance to the amendment process:

I am very glad to find that the opposition in your State, however formidable it has been represented, is, generally speaking, composed of such characters as cannot have an extensive influence; their fort, as well as that of those of the same class in other States seems to lie in misrepresentation, and a desire to inflame the passions and to alarm the fears by noisy declamation rather than to convince the understanding by some arguments or fair and impartial statements.  ...

Mac McDowell can be heard every Saturday morning from 9:00 to 11:00 Central time at 925thepatriot.com.

on "The States Must Restrain the Federal Government"