Plowing the ground for the Presidential primaries isn’t the only reason why some big names have been trekking to Michigan this fall. Some have been going to declare sides on the volatile issue of whether or not Michigan should tip the balance and become the 33rd state to call for a Constitutional Convention.
Article V of the U.S. Constitution states that Congress “shall” call a Constitutional Convention if 34 states request one. Thirty-two have already done so.
Advocates of a Balanced Budget Amendment (BBA) who are unable to get Congress to pass it in the usual way have resorted to traveling the hustings at the state legislatures and asking them to request a Constitutional Convention (known informally as a Con Con). After several big-name news conferences this month in Lansing, Michigan legislators appear even less eager than a year ago to take the responsibility for plunging America into a constitutional crisis via the uncharted route of a Constitutional Convention.
At a House Judiciary Committee hearing this year, Duke law professor Walter Dellinger called the Con Con drive “a classic case of constitutional bait-and-switch.” Con Con advocates bait legislators with arguments for a BBA, then hook them into a different resolution calling for a Constitutional Convention, which is very different.
The political activists pushing the Con Con speak with forked tongues about whether or not they actually want a Con Con to take place. Congressman Larry Craig supports the Con Con resolutions simply as a tactic, arguing that Con Con resolutions will force Congress to knuckle under and pass a Balanced Budget Amendment.
On the other hand, National Taxpayers Union chairman James Davidson says that he prefers the calling of an actual convention and will work to defeat any Balanced Budget Amendment written by Congress if it doesn’t meet with his approval. Some actions have been quietly taken in Congress which indicate that certain other people really do want Congress to call a Con Con.
A bill called “The Constitutional Convention Implementation Act” was recently voted out of the Senate Judiciary Committee and is awaiting action on the Senate floor. This bill would prescribe the procedure for a Con Con and for the election of its delegates.
This bill also purports to limit a Con Con to the one issue mentioned in the state legislative resolutions requesting a Constitutional Convention. Many constitutional scholars think any such statutory provision is just whistling in the wind.
Stanford Law School Professor Gerald Gunther told the House Judiciary Committee that this attempt is “profoundly unconstitutional” and that “it is snake oil to tell the country that Congress can limit or bind the convention.”
A Constitutional Convention implementation bill passed the Senate (but not the House) twice in the 1970s under the guiding hand of the dean of constitutional lawyers in the Senate, Sam J. Ervin. His bills limited the time span during which states could validly request Congress to call a Con Con to seven years, in accord with the constitutional principle that any change in our Constitution must be the result of a “contemporaneous consensus.”
The plot thickens. When the Constitutional Convention Implementation Act was introduced as S. 119 into the 98th Congress in 1983, its sponsors added a new section which grandfathers in all the existing state Con Con resolutions up to 12 years. When the same bill was reintroduced into the 99th Congress in 1985 as S. 40, this figure was changed again in order to grandfather in all existing Con Con resolutions up to 14 years.
This significant change was obviously made by those who really want a Con Con to take place, but who know there will never be a contemporaneous consensus within the traditional seven-year time period. Four of the Con Con resolutions now on file were passed back in 1975, and only two states have passed them since Ronald Reagan entered the White House in 1981.
The United States Constitution has endured longer than any constitution in the history of the world, and has been the centerpiece of a society which produces more freedom and prosperity than any other. It makes no sense to run the risk of having it rewritten by a new Constitutional Convention.
We should address ourselves to today’s problems (such as balancing the budget), not give a Constitutional Convention the power to make us fight in 1985 for the same basic American freedoms we already enjoy.
