The late conservative Supreme Court Justice Antonin Scalia said, “I certainly do not want a constitutional convention. Whoa! Who knows what would come out of it?”
Monday, Sept. 17, is Constitution Day, a time to celebrate the remarkable document signed on Sept. 17, 1787, 231 years ago. But we can’t just honor America’s very special Constitution — we need to protect it vigorously.
Today, our Constitution is endangered by a well-meaning proposal that is being advanced in a pernicious way. Twenty-eight state legislatures have passed resolutions that in one way or another call for a new constitutional convention to propose a balanced-budget amendment. Advocates are pushing Washington’s Legislature to join the 28, while others are asking legislators to support a constitutional convention to overturn the Supreme court’s Citizens United campaign funding decision.
According to Article V of the Constitution, a two-thirds vote of each house of Congress can send a proposed amendment to the states for ratification. That’s the way every amendment has been handled since Congress proposed the Bill of Rights on Sept. 25, 1789. But Article V also lets two-thirds of the state legislatures call “a convention for proposing amendments.” Either way, amendments require the approval of three-fourths of the states.
Today, because we have so many states with small populations, 34 states with just a third of all Americans could instigate a constitutional convention. The balanced budget convention idea has now been endorsed by 28 states, with just six more needed to reach the two-thirds mark. (Even though Florida and Texas are among the proposers, those 28 states represent just over half the country’s population.)
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Personally, I support some kind of balanced-budget amendment, though not the version pushed by convention advocates. They back a version that requires a 60 percent vote of each house to go into the red, while at the same time restricting revenue increases. I think a majority of Congress should be allowed to easily pass a deficit budget when certain negative economic triggers are met, and that Congress always should be able to approve taxes to offset a deficit.
Whether I like or dislike the specific proposal is not the point — the point is that a constitutional convention is a risky and potentially dangerous way to propose amendments. Washington should guard against this threat to our nation’s most important document, especially during this time of political upheaval.
Here are three reasons why.
First, we don’t know how convention delegates would be chosen. By legislatures? By elections? It’s up to the individual states. And because this balanced budget proposal is propelled by small-state legislatures’ conservative agendas, those same bodies could decide to pick delegates themselves and stack the convention with their adherents.
Second, a solid majority of legal scholars (though not all) has concluded that there’s nothing stopping a convention from deciding to propose other amendments at the same time: changing citizenship provisions or restricting women’s reproductive rights, for example. That’s why the late conservative Supreme Court Justice Antonin Scalia said, “I certainly do not want a constitutional convention. Whoa! Who knows what would come out of it?” And former Supreme Court Chief Justice Warren Burger wrote that there is “no way to effectively limit or muzzle the actions of a constitutional convention …. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda.”
Finally, a constitutional convention today would be unavoidably divisive, and more divisiveness is the last thing our country needs right now. If I were someone, domestic or foreign, trying to destabilize the United States, I would do everything I could in support of the convention effort.
Washington’s Legislature should decline to back a constitutional convention. On Constitution Day more than ever, America should stick to the tried and true method of changing our Constitution: build support in Congress; develop compromises; and then send a thoughtful product to the states for ratification. Let’s celebrate our Constitution rather than endangering it.