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Would a constitutional convention get it right?

By Dylan Matthews
Virginia Del. James LeMunyon has an interesting but wrong-headed op-ed in the Wall Street Journal calling for a national constitutional convention.

The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called.

This is certainly easier than going through both houses of Congress if one wants to reform the House or Senate, but it also limits the scope of what can be accomplished. This puts even more power to the states than the traditional amendment procedure does, and so further biases outcomes toward state preferences. So if one believes, as I do, that the Senate is a disproportionate and gridlock-inducing body that can and ought to be abolished, the fact that most states have more influence in the Senate than the House, and would stand to lose if the former were eliminated, makes the convention route futile. Admittedly, Senate abolition isn't happening anyway, but more modest reforms would also be stopped by states pursuing their interests as states. Russ Feingold's amendment requiring special elections to fill Senate vacancies would limit the states' ability to regulate succession, and states would thus likely be resistant.

What's more, LeMunyon's preferred constitutional changes are a useful reminder that most mainstream amendment proposals are terrible ideas. LeMunyon proposes a balanced budget amendment, which would have a catastrophic economic impact, especially in recessions. Imagine if TARP hadn't passed, even more major banks had failed, and the federal government was not able to do any fiscal stimulus to clean up the mess, and you start to get just how irresponsible a balanced budget amendment would be. But it sure was popular the last time it was seriously debated, and the support of 38 state legislatures, most of whom are operating under balanced budget amendments of their own, seems achievable. In the past, senators and representatives who understand why deficit spending is useful have been able to nip balanced budget amendment proposals in the bud, but state legislatures would show less reticence. LeMunyon also mentions an amendment banning "unfunded mandates." He's unclear on what he means by this, but it would likely involve giving states an excuse to cut federally directed programs, such as special education funding or disabilities protections. States would love it, but it'd be terrible policy for obvious reasons. And that's not even mentioning flavor of the week culture war amendments – school prayer, same-sex marriage, flag-burning – that could sneak out of a constitutional convention. The Constitution could use serious reform, but the institutional changes of the type procedural-minded liberals advocate don't have the constituency that silly and reckless proposals do. Until there's a general consensus that our institutions need to change, a convention would just bring trouble.

By Washington Post editor  |  April 1, 2010; 8:36 AM ET
Categories:  Congress  
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Comments

You'd think state legislatures would be less enthusiastic about a balanced budget amendment for the Federal government, considering assistance to states in the stimulus bill saved them from having to make a ton of really hard cuts.

Posted by: MosBen | April 1, 2010 9:09 AM | Report abuse

America has had a national debt since its inception. There was a grand bargain between Thomas Jefferson and Alexander Hamilton over dinner with George Washington that in exchange for Jefferson supporting the federal government's assumption of Revolutionary War debt from the states, Alexander Hamilton would support moving the Capitol from New York City to Washington, DC.

It's also worth noting that we would have lost WWII if a law like this had been in place. Not to get all Goodwin's law on you--it's an inarguable fact.

Besides, we HAVE a balanced budget law with the necessary exceptions for recession and war--it's called paygo.

Interestingly, every time the Democrats are in power, paygo is enforced and every time they are out of power, Republicans repeal it.

If you want to get rid of the national debt, it's pretty easy--make a Constitutional Amendment against Republican Presidents.

Posted by: theorajones1 | April 1, 2010 9:10 AM | Report abuse

Actually, I was just thinking that I'd actually be ok with a Constitutional Convention, even though I'm terrified what the Tea Party folks would want to get in there, as long as there was another Constitutional Convention ever 20-25 years. I think it would be a good thing to revisit our principles as long as we force ourselves to continually update them so no side gets an advantage by locking in certain changes.

And yeah, a balanced budget amendment is still a stupid idea.

Posted by: MosBen | April 1, 2010 9:14 AM | Report abuse

A balanced budget amendment would not necessarily require balanced budgets. Versions I've seen and heard about generally have a vote threshold required (2/3, 3/5, 3/4, or such) to pass legislation that would knowingly produce a deficit. TARP would therefore still be possible, and recessions would not be met with an inability to run a short-term deficit.

Generally things do sound a lot crazier when you don't actually bother to research the topic. Hopefully some day our country can debate facts instead of hyperbole.

Posted by: RichardCA | April 1, 2010 9:15 AM | Report abuse

Shorter Erza, Liberals know whats good for you so shut up and take it.

Posted by: obrier2 | April 1, 2010 9:22 AM | Report abuse

"Consensus"? And having the Supreme Court make changes in the Constitution through interpretation by using current events as a guideline is "Consensus?

Posted by: Dug0915 | April 1, 2010 9:49 AM | Report abuse

If there is a Constitutional Convention it would be the first Art. V Constitutional Convention. But, it would not be the first Constitutional Convention. We had one in 1787. It established the proposition that there are no limits on Constitutional conventions.

As a practical matter, it may be that a convention "limits the scope of what can be accomplished." But, it does not have to be limited to the scope for which it is called.

A Constitutional Convention is a very dangerous thing, unless one wants to start completely over - and risk such things as the loss of free speech.

Know anyone aggrieved by government who wants to do that?

Posted by: steven_blumrosen | April 1, 2010 10:17 AM | Report abuse

The last constitutional convention resulted in throwing out our old government under the Articles of Convention and the adoption of a new system of government and constitution. While the Articles required unanimous consent for change the great convention changed all the rules. Considering precedent, how will Florida and other states control the convention? History is not on their side.

Once the genie is out of the bottle we do not know what will happen. Maybe those who believe they can control the convention, maybe they are right, maybe the old government under the Articles of Convention will return giving us a small government with limited power.

Maybe.

Posted by: Renaud21 | April 1, 2010 10:17 AM | Report abuse

theorajones1-your last statement is SO
EXCELLENT!!! Your whole post gets a big high five from me. I'd like to know if anybody else is NOT GOING TO WATCH PUKE PALIN'S CIRCUS SHOW TONIGHT? I hope her ratings stink, but fully expect them to soar, at least for a while. I guess it is okay, this venue will just prepetuate her
stupidity and lust for fame and riches. I for the life of me cannot understand how any sane American can foresee her as a candidate in 2012. Those who worship her
are REALLY DESPERATE, and brain-lavaged, as all repukicans are. BOYCOTT ANYONE?

Posted by: patriotgmalou | April 1, 2010 10:54 AM | Report abuse

theorajones1-your last statement is SO
EXCELLENT!!! Your whole post gets a big high five from me. I'd like to know if anybody else is NOT GOING TO WATCH PUKE PALIN'S CIRCUS SHOW TONIGHT? I hope her ratings stink, but fully expect them to soar, at least for a while. I guess it is okay, this venue will just prepetuate her
stupidity and lust for fame and riches. I for the life of me cannot understand how any sane American can foresee her as a candidate in 2012. Those who worship her
are REALLY DESPERATE, and brain-lavaged, as all repukicans are. BOYCOTT ANYONE?

Posted by: patriotgmalou | April 1, 2010 10:56 AM | Report abuse

First, the Senate is an "entrenched" portion of the Constitution, so may (according to most readers) be changed only through revolutionary action, not a convention or amendment. Second, the move towards a constitutional convention has the effect of forcing Congress to do that which it might not otherwise do: the Amendment which established popular election of Senators is a result of a convention movement.

Posted by: rmgregory | April 1, 2010 11:18 AM | Report abuse

The Federal government has become a runaway train. It is unable to control spending and the growth of the national government at the expense of the States and the rights of the People. We know that Congress will do nothing to slow down the deficit spending and the power grab by the Federal government. Consequently, an Article V Constitutional Convention called by 2/3 of the States may be the only solution. It has risks, however, doing nothing is even more risky. As to Ezra Klein's idea of getting rid of the Senate, its a bad one. Progressives would like to see that happen because they could railroad things through with just one or two votes, just like they did with Health Care. The Founder's saw the Senate as a deliberative body, representing the States not the people directly (the United States is a republic) that would not get caught up in the emotions of the moment and thus eliminate mistakes and harm to the Nation. The simplest solution to an out of control Federal government is to ammend the Constitution to limit its size as a percentage of GDP (i.e. 20% of GDP) during times when war has not been declared.

Posted by: acahorvath | April 1, 2010 12:25 PM | Report abuse

A constitutional convention should be seriously considered. And there should be a debate about what kind of constitution serves the needs of a huge 21st century nation.

The convention process need not be controlled by the states. As others have noted, it could be used as a means to bypass Article V, and that is the only way to achieve necessary changes like reforming or abolishing the Senate.

Of course a new constitution will be imperfect, just as the current one is, but
once the straightjacket of Article V (which makes the constitution almost unamendable) is gotten rid of then any flaws in a new constitution need not be permanent.

The important thing is that the form the constitution takes would shift to becoming something debated and decided by voters in elections/referendums, rather than a relic set in stone in the 18th century and manipulated by an increasingly politicised Supreme Court.

I think the idea that an unamendable constitution is the best way to preserve free speech and democracy shows too little faith in the general public and in America's democratic culture.

Posted by: Modicum | April 1, 2010 12:56 PM | Report abuse

In my view the only dangerous amendments are those that would introduce particular economic policies or fads (like a balanced budget rule or caps on taxes/spending) but then subject the new provisions to the existing Article V rule, so that the experiment is almost impossible for the people to undo once its proven to be a terrible idea.

There is something inherently undemocratic about the desire on the right to take basic economic policy decisions completely out of the hands of voters in this way.

Posted by: Modicum | April 1, 2010 12:57 PM | Report abuse

Deficit spending is useful to Congress, under current circumstances, because it permits them to levy a tax on the economy for which THEY are not held accountable, via the Fed, and the inflation generated by "monetizing" the debts Congress runs up.

Deficit spending in the past was sometimes deemed necessary to pay for a major war, and inflation always resulted, but it was relatively short-term, and subsided as the war debts were retired... until the establishment of the Fed, the advent of permanent fiat money... and permanent inflation.

I'm for a balanced budget amendment. Its not that hard to write in provisions for a real emergency without permitting Congress to make deficit spending their ordinary routine at all times, and for all purposes.

Whether a Constitutional Convention is the optimal procedural vehicle to see this done is another matter, but if Congress won't act on its own, perhaps it is the only one. There is still the question of whether a Convention could be limited to a single proposed amendment (or limited at all), but the required super-majority of States wouldn't ratify anything that strayed far from their mandate, so limitation of the Convention shouldn't be an issue.

Posted by: Iconoblaster | April 1, 2010 1:00 PM | Report abuse

The assertion that "we'd have lost WWII if this amendment were in effect" is absurd.

Especially since there isn't any "this amendment" on the table, with terms sufficiently specific to support such an unequivocal proposition.

There are almost no imaginable circumstances (not even something really extreme, like Nazi acquisition of an atomic bomb before the Reich was utterly reduced to rubble) that would have led to an American defeat in WWII. Any time after Pearl Harbor, even if a really substantial super-majority in Congress would have been required to fund the war, it would have been done. Can you really imagine Congress standing up to Roosevelt in, say 1944, and saying "No more money for the troops"?

Besides, DURING WWII, the US government pretty much got away with violating the Constitution anyway, when it really wanted to (the detention of citizens of Japanese descent, and the handling of the German saboteurs that came ashore on the East Coast, are but two examples). A budget requirement in the Constitution wouldn't have been a serious problem.

Posted by: Iconoblaster | April 1, 2010 1:15 PM | Report abuse

A balanced budget amendment would need such gaping exceptions as to render it almost meaningless. Certainly, it would be no more effective that a paygo rule; useful when legislators take it seriously, skirted around when they don't.

And man, people need to pay attention to the fact that Ezra's not here today. He's on vacation guys. Blame Dylan if you're freaking out.

Posted by: MosBen | April 1, 2010 2:50 PM | Report abuse

The biggest problem with a balanced budget amendment is not whether it's good fiscal policy. It's that it either gives a dangerous amount of power to unelected judges (which conservatives usually abhor) or it's unenforceable.

The whole premise of the amendment is that Congress lacks the will to be fiscally responsible. So let's say Congress passes an unbalanced budget and the president signs it. Who or what will make them balance it?

First, who can sue? Second, how will a judge decide if the budget is really "balanced"? Third, and most important, how will a judge force Congress to redo the budget? Will the judge be able to cut spending? Raise taxes? Hold Congress in contempt and put them in jail unless they come up with a plan that the judge deems balanced? Is this really what we want our federal judges to be doing?

The last time this issue came up, Senator Orin Hatch said not to worry about rampant judicial power since there would be a provision to make it judicially unenforceable. But if no one can enforce it, then what's the point?

The enforcement problem alone should make this one a nonstarter. In the end, the politicians should ask us to make the hard decisions necessary for them to take the steps necessary for fiscal responsibility. It's not "the government's" debt; it's our debt, and we're responsible for the problem and for its solution. When we accept that we're going to pay higher taxes, or accept fewer services, or some combination of the two, then we'll have a balanced budget. But just putting a clause in the Constitution won't make it happen for us.

Posted by: dasimon | April 1, 2010 3:52 PM | Report abuse

Mr Klein, your arguments against a constitutional amendment are, in fact, argument in favor. Just because you think the Senate or the states should play little or no role in making public policy, you do not persuade me. In fact, repeal of the 17th Amendment might actually be of some benefit... along with the 16th Amendment too. The consequences of the progressive impulse, beginning with Woodrow Wilson and ending with Barack Obama, have been almost uniformly disastrous to the long-term survival of our republic.

Posted by: JBaustian | April 1, 2010 9:34 PM | Report abuse

Ezra Klein is a consistant mouthpiece for anything that would screw Americans. Our Constitution is fine, the only flaw be Corporate America's ability to legislate away our unalienable rights during the current useful idiot Marxist powerplay in Washington. Our forefathers got it right and the people are coming up to steam with the right bibles, the right constitution, and the right heart.

Posted by: givenallthings | April 2, 2010 4:58 AM | Report abuse

Rather than fearing an Article V convention, Americans should fear the two-party plutocracy status quo where voting no longer has a chance of producing deep, needed reforms. Also, what should anger patriots is that Congress has refused to obey the Constitution because over 700 applications for a convention from all 50 states more than meets the one and only requirement for a convention. More evidence of how corrupt the political system is. What Congress fears is exactly what Americans need. Learn all the facts at foavc.org.

Posted by: JoelSHirschhorn | April 2, 2010 10:23 AM | Report abuse

A couple of points on constitutional conventions, based solely on recollection since I'm too lazy to double check the Constitution and the history.

Amendments by a convention do not absolutely have to be approved by state legislatures, they could be approved by state-level constitutional conventions. This mimics the original process approving the Constitution.

One amendment, either prohibition or its repeal (I can't remember which) was done by a convention system. The convention(s)did not take this as an opportunity to do anything "dangerous" like remake the system of American government.

Finally, even with a conventions system it is difficult to pass amendments because it still requires approval by three-fourths of state constitutional conventions. What the convention system provides that would be different from the Congress-legislatures ratification process is the possibility of passage of a change over which there is a vast difference of opinion between voters and their elected representatives (perhaps some kind of extreme, persistent elite-populist divide).

Posted by: dollarwatcher | April 2, 2010 12:16 PM | Report abuse

The thing is this:
The country is divided, culturally and politically, with a balance of power mediated by our fundamental code of laws. Its institutions are outdated and malfunctioning, but we can't use the change processes they code for because we don't trust the other half of the country to access the fundamental code of laws and thus shift the balance of power.

I think the Conservatives have a point, it may be desirable to look into substantially increasing the power of the state and pursuing a more European balance between the periphery and the core. A straight dissolution would lead to war in either the short or the long term and is thus unacceptable, but the status quo is a recipe for unpredictable change in a future point of crisis. We need an architecture that is both more flexible and more tolerant of our core differences. The only way I can conceive of to accomplish this is a constitutional convention.

Posted by: adamiani | April 3, 2010 2:36 AM | Report abuse

Thanks for posting and the comments, pro and con. I value both kinds. For those on the "con" side, I especially welcome knowing about your better alternatives.

Posted by: JimLeMunyon | April 3, 2010 6:04 PM | Report abuse

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