Scalia Would Have Wanted the States to Use the Article V Amendment Power Responsibly

 

Compact-for-America-logoBy Paulette Rakestraw and Mead Treadwell

A month ago, the editorial board of USA Today issued a warning urging the states to resist the call by Sen. Marco Rubio for a “constitutional convention” to draft amendments to balance the federal budget and impose term limits on judges and members of Congress. As the two current commissioners of the Compact for a Balanced Budget, we agree with the editorial board (and its reference to remarks that the late Justice Antonin Scalia had given years ago): a “constitutional convention” conducted outside the scope of Article V of the US Constitution would be inappropriate.

But there’s a big difference between conducting a constitutional convention of the kind that took place in Philadelphia in 1787 versus offering a single amendment as provided for in Article V. Currently, Congress can propose a constitutional amendment when two-thirds of both the House and Senate approve it. And the states can propose an amendment too, when at least two-thirds of them (34) submit a common application to Congress that details the amendment to be proposed. Once Congress receives the completed application, it is then required to call a convention where the states will formally consider the amendment. The vote of a majority of states at this convention would send the proposed amendment out for ratification, which requires the approval of three-quarters of state legislatures (38).

While the late Justice Scalia correctly warned against an open constitutional convention, he also offered a way of addressing structural political issues that Congress is either unable or unwilling to address. As then-Professor Scalia said in 1978, “There is no reason not to interpret [Article V] to allow a limited call, if that is what the states desire.”

Because it ensures such a laser-focused Article V convention, just as Justice Scalia wanted, we are proud to support the Compact for a Balanced Budget. The Compact is a binding agreement among the states to advance and ratify a specific federal Balanced Budget Amendment by April 12, 2021. This agreement settles all questions about the convention in advance. It limits delegates to no more than three per state. It limits the debate to a specific amendment that is voted up or down. And it limits the convention to no more than 24 hours in duration.

The strictly limited, fully defined Article V convention organized by the Compact for a Balanced Budget is the farthest thing from the runaway “constitutional convention” feared by USA Today’s editorial board and many others. It is also the surest bet for fixing the runaway federal debt.

Nothing short of a constitutional amendment will tie the hands of Congress when it comes to debt spending. That is because the political benefits of debt-spending outweigh the political costs of sending the bill to our kids.

Four states have already joined the Compact — Alaska, Georgia, Mississippi, and North Dakota — so with the support of just 34 more states and simple majorities of Congress, this turnkey mechanism will deliver a powerful federal Balanced Budget Amendment. This amendment enforces a glide path to balanced budgets by limiting Washington’s borrowing capacity.

We have no choice but to look to state leadership to advance this crucial constitutional reform because it is not plausible that two-thirds of each house of Congress will ever propose any such amendment on their own. We urge readers to find out more about our powerful amendment proposal, which many more states are poised to join in their upcoming 2016 legislative sessions. Let’s honor Justice Scalia’s wisdom that the states should use their Article V amendment power responsibly.


Paulette Rakestraw is a member of the Georgia House of Representatives. Mead Treadwell is the former lieutenant governor of Alaska. They are commissioners of the Compact for a Balanced Budget.

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There are 15 comments.

  1. Inactive

    What are the legitimate risks to a full convention?

    While I might agree with your Balanced Budget Amendment, I haven’t yet heard reasons why an open convention could realistically be a greater threat than the runaway government we have now.

    • #1
    • February 15, 2016, at 2:13 PM PDT
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  2. Inactive

    MoltoVivace:What are the legitimate risks to a full convention?

    While I might agree with your Balanced Budget Amendment, I haven’t yet heard reasons why an open convention could realistically be a greater threat than the runaway government we have now.

    Since you ask about risks, one that comes to mind is that progressives could use such a convention to repeal or burden rights they don’t like, such as free speech, freedom of religion, 2nd amendment rights, due process rights for men accused of rape. They could move to chisel affirmative action into the constitution, along with something about climate change, free college education, and the rest of their agenda. At present, the progressives probably don’t have the juice to get their agenda through.

    The only thing that would keep an open convention from being dangerous is having enough states to fight against them.

    • #2
    • February 15, 2016, at 2:29 PM PDT
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  3. Contributor

    I don’t think this is true. I once saw Scalia argue that we don’t amended the constitution enough. He argued that the framers probably made it too difficult to modify.

    This article is archived here (Curse subscription websites). When asked what amendment he’d offer to the constitution, he said:

    “I once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. ‘It ought to be hard, but not that hard.”

    • #3
    • February 15, 2016, at 2:32 PM PDT
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  4. Inactive

    They are doing all of that right now, without a convention. I fail to see how this is a legitimate risk when it’s what is occurring right now.

    • #4
    • February 15, 2016, at 2:33 PM PDT
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  5. Member

    The appeal of a balanced budget amendment is precisely why a constitutional convention is a bad idea. People can be stampeded in one direction or another with skillful sound bites. Spending is the problem not borrowing. Any balanced budget requirement would have to have a national security exception. If you want the Democrats to become the war party have at it. Do you really want the Democrats to own the nanny state, the welfare state, the entitlement state, and regulatory state and the military industrial state? Moreover, a balanced budget amendment would have to have an exception that we not raise taxes in a recession. Indeed it kicks the issue of spending down the road and makes it worse. The most critical issue that might be addressed in such a convention would be the regulatory process and the Commerce clause. I have no confidence we’d get it right. Congress can address these because the constitution is already very clear and needs no amendment.

    • #5
    • February 15, 2016, at 3:48 PM PDT
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  6. Member

    Paulette Rakestraw: Four states have already joined the Compact — Alaska, Georgia, Mississippi, and North Dakota — so with the support of just 34 more states and simple majorities of Congress, this turnkey mechanism will deliver a powerful federal Balanced Budget Amendment.

    Procedural question. Where does the simple majority of Congress come into the process? Is that what you meant by:

    Once Congress receives the completed application, it is then required to call a convention where the states will formally consider the amendment.

    Could a simple majority of Congress block this step?

    • #6
    • February 15, 2016, at 3:54 PM PDT
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  7. Inactive

    I Walton:The appeal of a balanced budget amendment is precisely why a constitutional convention is a bad idea. People can be stampeded in one direction or another with skillful sound bites. Spending is the problem not borrowing. Any balanced budget requirement would have to have a national security exception. If you want the Democrats to become the war party have at it. Do you really want the Democrats to own the nanny state, the welfare state, the entitlement state, and regulatory state and the military industrial state? Moreover, a balanced budget amendment would have to have an exception that we not raise taxes in a recession. Indeed it kicks the issue of spending down the road and makes it worse. The most critical issue that might be addressed in such a convention would be the regulatory process and the Commerce clause. I have no confidence we’d get it right. Congress can address these because the constitution is already very clear and needs no amendment.

    You don’t need a national security exception, you just need a super-majority and presidential signature exception.

    As you state the problem is spending too much, not borrowing enough to make the budget balance. That is why I think we need a spending cap amendment, not a balanced budget amendment.

    • #7
    • February 15, 2016, at 4:13 PM PDT
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  8. Inactive

    Frank Soto:I don’t think this is true. I once saw Scalia argue that we don’t amended the constitution enough. He argued that the framers probably made it too difficult to modify.

    This article is archived here (Curse subscription websites). When asked what amendment he’d offer to the constitution, he said:

    “I once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. ‘It ought to be hard, but not that hard.”

    He said the same thing to Peter Robinson during an Uncommon Knowledge interview. You are entirely correct.

    • #8
    • February 15, 2016, at 4:18 PM PDT
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  9. Inactive

    Now that I think about it, maybe all the amendment has to do is require super-majorities of Congress to issue debt against the treasury. If the feds had to tax to pay for all the spending there likely would be a lot less of it.

    “Two-thirds majority of the House and the Senate shall be required to issue bonds or other financial instrument against the federal treasury.”

    Or some other similar language.

    • #9
    • February 15, 2016, at 4:21 PM PDT
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  10. Member

    Z in MT: “Two-thirds majority of the House and the Senate shall be required to issue bonds or other financial instrument against the federal treasury.”

    The issuing of bonds is often necessary for cash flow purposes, since funds do not come in evenly spaced chunks.

    Instead, let’s just make it an awful thing for congress to get us more into debt.

    Something along these lines:

    “An increase in the debt ceiling shall be limited to 25 basis points (1/4%), and shall result in a penalty reduction in the compensation of each member of Congress and the Senate of 10% of that member’s base pay through the end of the member’s term, cumulative if the ceiling is increased more than once within that member’s term.”

    “Congress may neither receive an increase in compensation nor vote to increase its members compensation, including automatic adjustments, in any Congressional term that it also issues legislation to increase the debt ceiling. Any increase in compensation passed within that term shall be void, and the amount of the increase previously paid shall returned to the Treasury.”

    Let’s give them some incentive to do it right.

    • #10
    • February 15, 2016, at 5:34 PM PDT
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  11. Member

    There are no magic rules, nor super majority protections just the constitution and the court. If we can’t nominate justices who believe the constitution means what it says, nor find our way to follow the constitution there is no hope that we’d be able to put together a bunch of statesmen anywhere near the originals.

    • #11
    • February 15, 2016, at 5:41 PM PDT
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  12. Member

    Man With the Axe:

    MoltoVivace:What are the legitimate risks to a full convention?

    While I might agree with your Balanced Budget Amendment, I haven’t yet heard reasons why an open convention could realistically be a greater threat than the runaway government we have now.

    Since you ask about risks, one that comes to mind is that progressives could use such a convention to repeal or burden rights they don’t like, such as free speech, freedom of religion, 2nd amendment rights, due process rights for men accused of rape. They could move to chisel affirmative action into the constitution, along with something about climate change, free college education, and the rest of their agenda. At present, the progressives probably don’t have the juice to get their agenda through.

    The only thing that would keep an open convention from being dangerous is having enough states to fight against them.

    No way! Have you even gone to conventionofstates.com to get the real story? My gosh, I thought HERE of all places people would be able to winnow out the truth. I’ve been involved with CoS since December, and there is no way progressives could “take over” a convention of states. There would be delegates from each state—blue, red, and purple, and ANY delegate who deviates from their state’s purpose would be recalled and replaced with an alternate. If the assemblage cannot reach a consensus, nothing would be done, and everyone goes home. If agreement is reached (balanced budget, term limits for Congress and federal judges, and reining in the bureaucracy are the ones being considered—no more than 3, and each state must present their proposals worded closely enough to prevent Congress from denying them), 3/4 of the states must ratify these amendments before they join the other ones. I’m probably garbling this explanation; the website does a much better job. Senator Tom Coburn is one of many who have joined this effort; please check it out!

    • #12
    • February 15, 2016, at 6:07 PM PDT
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  13. Inactive

    actually Scalia lamented how difficult it was to amend the constitution

    http://nymag.com/news/features/antonin-scalia-2013-10/index1.html

    Do you think there are flaws in the Constitution?
    The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least ­populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.

    • #13
    • February 15, 2016, at 6:13 PM PDT
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  14. Thatcher

    The point of an article five convention for me started out being attractive because we could use it to solve all these problems.

    I have a new way that I think about this having recently read through the Federalist and Anti-Federalist Papers… Checks and balances are not a monopoly owned by the government. The states have a right and a duty to act as a ballast in the scales of power. And, the people can throw in with the states to rein in the national government.

    Constitutionally, it isn’t weird for an explicit power to be exercised. Rather it’s weird when a power is exorcised from the body in which it is vested. It’s weird that the congress de facto lost the power of the purse, temporarily. It’s weird that the congress accepted mere assertions on the definition of a treaty as a viable threat to its review power. It’s weird that the ninth, and tenth amendments are sweetly, silently, dormant.

    It’s weird that in a time of over reach by the national government, that the state governments would just sit, and watch, as though they’re powerless, when they are, in fact, powerful.

    The fifth article of our constitution is no ticking bomb. It is not a booby trap. The founders, for all their biblically bolstered beliefs, did not install a fruit tree from which we must not eat.

    This is a necessary tool for any republic. There is a grave need for a method to revise the government’s powers with or without their permission, and , in the end, without violence. We are not cursed. We are blessed to have that option.

    • #14
    • February 15, 2016, at 11:34 PM PDT
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  15. Member

    It all comes down to getting the Marxist States of America down to only 12, regardless of how we amend things. California, Oregon and Washington in the west and NJ, Del, RI, NY, Mass, Conn, Vermont and Maryland in the East and Illinois and Hawaii are all solidly against any limitations to extending the Federal authority. There are several other states that are borderline. If we had any brains or guts, we would be fighting this effort by turning places like Delaware and Rhode Island red for the purpose of gaining their senate seats. Unfortunately, Republicans generally are gutless lot who would rather retreat to Texas.

    • #15
    • February 16, 2016, at 6:48 AM PDT
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