The Final Constitutional Option

Robert Berry:

Having been dormant for centuries, a potent section in the U.S. Constitution is now in the minds and on the lips of a new generation of reformers who are determined to keep the nation out of an abyss.  As America stares hard at the darkness ahead, the new reformers have begun to popularize this forgotten constitutional provision that might well become Official Washington’s undoing.

The problem, which hardly needs stating, is that the federal government has become the very monster the founders anticipated.  Quite likely, the beast we face is far beyond anything that could have been imagined by the founding generation.  Even today it is hard to adequately comprehend the omnipresent and, thanks to the NSA, omniscient federal menace that overhangs every aspect of life in 21^st-century America.

The founders’ concern that power would be consolidated at the federal level is dealt with in Article V of the U.S. Constitution.

Author Mark Levin, in his blockbuster best-seller, The Liberty Amendments: Restoring the American Republic, based his ideas for reform on this less well-known means by which amendments may be proposed — a process that entirely outflanks Washington’s fixed fortifications.  Levin cogently argues that attempts at reform from within Washington are futile.

Obviously, what is needed is a way to trump the Beltway ruling class from without.

Enter Article V, which prescribes the amendment process.  Article V establishes the amendment process as a two-phase affair: proposal, followed by ratification of three fourths of the states.  The states have no way to ratify that which has not first been proposed.  From the beginning, the states have relied on congressional super-majorities to do the proposing.

But the founders knew that Congress would be loath to propose anything that would limit federal power, so they included a way for the states to propose amendments in an ad hoc assembly Article V styles as “A Convention for Proposing Amendments.”

The idea of using the amendments convention assembly has surfaced from time to time in U.S. history — most recently in the 1980s, with the movement to propose a Balanced Budget Amendment (BBA).  The effort peaked with 33 states passing resolutions — just one shy of the required two-thirds of state legislatures, which would have compelled Congress to issue a call for the amendments convention.

That’s when the effort took a bizarre detour — into oblivion.

The BBA advocates of the 1980s, including then-President Reagan, were decidedly of the political right.  The last thing anyone in the movement expected was for “friendlies” from elsewhere on the right to object to the idea in near hysterics as a plot to render the Constitution null and void.  The unlikely opponents, while not necessarily opposed to a BBA, condemned in no uncertain terms the use of the amendments convention to propose it.  It quickly became evident, from the critics’ rhetoric, that they had conflated the Convention for Proposing Amendments assembly with a so-called plenary (full authority) Constitutional Convention.

BBA advocates attempted to clarify the difference between the types of conventions by pointing out that, as sovereigns, the states have never needed permission from the Constitution to call an actual Constitutional Convention.  Indeed, the only reason to invoke Article V would be to self-limit the convention’s authority to “proposing amendments,” as the assembly’s name indicates.

Even more restrictive was the scope of the states’ resolutions, which sought to limit discussion to the consideration of a single amendment — a BBA.  The argument was that, during the amendments convention, if a majority of the states, each represented by a delegation of state legislators, voted for a BBA, the proposal would be transmitted to Congress and then to the states for ratification — just as every other amendment proposal in U.S. history.

The BBA advocates argued that if the delegates were to propose anything other than a Balanced Budget Amendment, Congress would be barred from forwarding the proposal to the states.

The critics would have none of it.

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