George Will: A Recourse to Budgetary Inaction

From the Goldwater Institute ...comes an innovative idea. It would use the Constitution's Article V to move the nation back toward the limited government the Constitution's framers thought their document guaranteed.

The Compact for America is the innovation of the Goldwater Institute's Nick Dranias, who proposes a constitutional convention carefully called under Article V to enact a balanced-budget amendment written precisely enough to preclude evasion by the political class.

Congress, which relishes deficit spending, would not, unilaterally and unpressured, send this amendment to the states for ratification. Hence the Goldwater Institute's recourse to Article V. It provides, in the same sentence, two amendment procedures, one of which has never been used, the calling of a convention by two-thirds of the state legislatures.

I don't disagree with a word of your analysis. I'm under no illusion there will be a state convention to propose amendments. The Uniparty will utilize any means necessary to sabotage the process.

What grinds my sensibilities is the outrage, that in what was designed as a federal republic, in which the states were equal custodians of our freedoms, the consolidated government has assumed illegitimate power to split hairs over the wording of state applications, in order to avoid calling an amendment convention.

The constitution is silent as to what constitutes acceptable wording of applications. No matter the composition of the applications, if two thirds of the states call for a federal convention to propose amendments, Congress is constitutionally bound to call a convention.

From the wording of Article V, from Madison's notes at the Philly convention, and The Federalist, I'm not aware of any requirement for identical applications. It follows that it is up to the state legislatures alone to determine the scope of their delegates' commissions, and subsequent amendment proposals, not Congress nor a lawyer in the bowels of the Office of the Federal Register.

It is constitutionally irrelevant whether thirty four states call for an amendment convention to propose term limits, a balanced budget or repeal of the 16th and 17th amendments. Congress is constitutionally bound to call a convention when thirty four states apply for a convention, no matter the amendment subject matter.

Yes, I'm sure there is a trail of Scotus decisions that disfavor what I've written. Since the federal courts are little more than the political muscle, the legal arm of the Uniparty, and serve to cast a patina of legitimacy to statism rather than function as unbiased constitutional arbiters, I don't really care.

Events in NV reflect building disgust that can be addressed in one of two ways. Only one of them is peaceful.

Congress has long maintained two unwritten standards, the Single Subject Standard and the Contemporaneousness Standard. The ABA believed that these standards should be laid down in writing, and there were attempts from 1967 through 1991 by Senators Dirksen, Ervin and Hatch. Congress likes to keep these standards unwritten so that a potential litigant, i.e., a state, cannot get a legal handle on the issue.

However, there is nothing to prevent a state from petitioning for a general convention at which any subject could be considered. There are two petitions on record from 1789, although Congress would no doubt say that those petitions were "stale". But even the ABA understands that a general convention is possible. Note, however, that a general convention cannot write a new constitution, only formulate amendment proposals on any subject it pleases.

In Walker v. US in 2000, William Walker asked the federal courts to consider that Congress should have called a convention back in the 1890's when the two-thirds threshold was first reached. Judge Coughenour dismissed the suit stating that Walker lacked standing. No state has gone to court to make the same claim. This is because the states recognize both the Single Subject Standard and the Contemporaneousness Standard. The Single Subject Standard, at least, has roots in settled contract law, and both the states and Congress understand that an Amendments Convention is bound to its subject by longstanding principles of contract law that even predate the Constitution itself.

To prevent Congress from using specious excuses like word difference and punctuation to prevent petitions from being tabulated in the correct column, the ABA went so far to suggest that each state sending a convention petition to Congress say in that petition which states had previously submitted petitions on the same topic so as to force Congress to tabulate them in the correct column. The reason the movement is calling all these preparatory sessions is to work on the wording so as to prevent Congress from refusing to call a convention because of specious excuses about words. They are also working on the ground rules so as to prevent Congress from passing any bill like those earlier written by Dirksen, Ervin and Hatch that would exercise the wide latitude in regulating the amendatory process that Congress got from the Supreme Court in 1921 and 1939. An ounce of prevention in worth a pound of cure.

How does it differ from Mark’s proposal?

It would appear to differ in a number of ways, but the two primary differences that I can see are 1) the Compact for America Balanced Budget Amendment deals with just that one subject, and 2) the legislation is structured so that the actual application to Congress for the "call" doesn't occur until every requirement has already been met in advance by the individual states, including the commissioning of delegates and pre-ratification by the requisite number of legislatures. Nothing will be left to chance when they decide to pull the trigger. The convention itself will be over within 24 hours, with ratification being simply a matter of paperwork.

The Citizens for Self-Governance Convention of States proposal, on the other hand, is much more broad in its scope and its approach. Here we're talking drama... a true convention in the sense of its duration (which could last for several months), the number and variety of attendees (which could change over time), the varied subject matter, the wealth and differences of ideas and opinion, and the passion of genuine debate... none of which will be seen in the more parliamentary procedures of the CFA BBA.

Another difference that I would expect, since the BBA process will be stealth in comparison and may virtually slip through under the radar until it's nearly a fait accompli, is that the media, having missed the boat on the first-ever successful, state-driven (and precedent setting!) Article V movement, will be all over the CSG COS... either for better or worse.

It doesn’t sound too much like the American people would support it considering their love of government programs.

You're probably right. Along with the legislative push for an Article V Convention, I'm seeing a major effort to educate and inform. There are local online groups all across the country, from the state down to the district level, helping to make folks aware of Article V and the authority it vests in the states.

How odd that none of us were taught this in Am Hist 101... /s

An Article V Convention of States - It's a Solution as Big as the Problem! http://www.conventionofstates.com/

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