The Balanced Budget Amendment:
A Limited Constitutional Convention

I'd like to spend a few moments on the issue of a limited Constitutional Convention. For years, the American Legislative Exchange Council has supported a limited Constitutional Convention for the purpose of proposing a balanced budget amendment to the states. It is our strong view that the limited convention is a completely safe mechanism. We further believe that concerns about a "runaway" convention are entirely unfounded. This afternoon I will discuss some of those concerns and the considerable safeguards against a "runaway" convention.

Principals and Agents

The issue is very simple. It is basically about this --- whether a principal can limit an agent. It's as simple as that. A real estate agent is not empowered to sell your car. Such an agent is limited by the authority granted by the principal. The delegates to the Constitutional Convention would be agents of the state. If the states cannot limit their agents, the delegates to a Constitutional Convention, then don't be surprised if your car gets sold with your house.

The First Constitutional Convention was not a Runaway

Let's start at the beginning. It is often suggested that the original Constitutional Convention was itself a "runaway" convention. This is just plain wrong. The states called the Convention. And their calls were very general. The state calls contained phrases like

... for the purpose of taking into consideration the state of the Union, as to trade and other important objects, and of devising such other Provisions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof.

Frankly, the Constitutional Convention could not have exceeded its authority, because it was given general authority.

The First Constitutional Convention was Legitimate

Ironically, some of the same people who argue that the Constitutional Convention was a "runaway" convention speak of that convention in the most reverend terms --- even referring to it as "divinely inspired." And who can argue with anyone who suggests that the Philadelphia convention attracted a collection of delegates who were uniquely qualified, and whose product is deserving of the highest respect? But you can't have it both ways.

Either it was not a runaway convention and it was legitimate, or

it was a "runaway" convention and it was illegitimate.

My father is a preacher, and he always taught us that the Almighty does not work through illegitimate channels to accomplish His objectives.

If Limited Conventions are Impossible, Why Hasn't One Been Called?

There are today more than 40 state calls for a US Constitutional Convention. Most of them are limited, and they cover a variety of issues. If it were not possible to limit a Constitutional Convention, then the Congress has failed in its Constitutional responsibility to call a convention. Yet no state attorney general has sued the Congress to compel such a convention. Why have generations of state attorneys general failed to sue? Because there is a broad consensus that limited convention calls cannot "mutate" into a general convention. In my view this is indisputable proof that the political and legal consensus in this nation is that you can limit a Constitutional convention. If it were not possible, then a general convention would have already been called by the Congress, from the more than sufficient state legislative calls that exist.

Additional Safeguards

Now we at ALEC are more than convinced that a Constitutional Convention can be limited. But let's suppose for a minute that something goes wrong --- that in the process attempts are made to broaden the agenda of a limited Constitutional Convention.

First... The Congress may fail to limit the call, violating the intent of the state resolutions. The states, which are so concerned that the agenda be limited, would sue without delay. Finally, members of Congress who voted to expand the agenda would face electoral wrath. And, states would refuse to send their delegates. What if you had a Constitutional Convention and no-one came? Nothing.

Second... If a limited Convention itself were to expand its own agenda, again, states would sue, and state delegations would be withdrawn.

Third... If a proposed Constitutional amendment that exceeded the call were reported to Congress, Congress could refuse to submit the amendment to the states. If Congress submitted the illegitimate amendment, the states would sue. And the members of Congress who voted to refer the illegitimate amendment would face the wrath of the voters.

Fourth... After all of the above safeguards had failed, 38 states would have to ratify the illegitimate amendment. I would respectfully suggest that if any amendment survived this process, the nation would have long since abandoned the Constitution, and a consensus for the proposed change would already have developed. There is no such consensus on the horizon.

Now of course, these events would not occur, but it is interesting to note that even under the improbable scenario portrayed for a "runaway" convention, an extraordinary set of circumstances would need to occur. It just isn't credible.

Precedent for Limited Conventions

Further, there is legal precedent. During this century there have been approximately 50 state limited constitutional conventions. In four cases, the conventions have exceeded their legal mandate. In each of the cases, state courts have invalidated their produces for having exceeded their authority. The agent may not exceed his or her authority.

State Control of Convention Delegates

Moreover, it is important to understand that the Constitutional Convention would be a convention of states, not a federal convention. The individual delegates would be under the control of the states. A number of states place legal requirements on their electoral college delegations in presidential elections. Electors are required to cast their votes for the candidate receiving the highest popular vote in the states. In some states, failure is a felony.

The same logic can be applied to Constitutional Convention delegates. This provides another potential safeguard, which is offered not because the present safeguards are insufficient, but because it might make those concerned about a runaway convention more comfortable. States could pass a "Faithful Delegate" act, which would proscribe a standard of behavior for Constitutional Convention delegates. It could include provisions such as these.

First, that each delegate swear an oath of allegiance to the Constitution of the United States.

Second, that any action by a delegate supporting or encouraging an expansion of a convention agenda beyond the subject of the call would be construed as a concurrent act of resignation. It could even be a felony.

Third, before voting on any Constitutional amendment, the states delegation would need to obtain a finding from a special panel that the proposed amendment does not exceed the limited purposes of the call. The panel might include the Governor, the Speaker of the state House and the President Pro-Tem of the state Senate. In this age of instantaneous communication, this would be more than practical.

The Real Risk: Failure to Balance the Federal Budget

Finally, the need for a balanced budget amendment is overwhelming. The Bi-Partisan Commission on Entitlement and Tax Reform of the US Congress has reported that by the year 2010, federal revenues will be sufficient only to pay for interest on the national debt and to fund entitlements, unless we do something to radically change current trends. A report by the National Taxpayers Union suggests that after tax incomes could decline by two-thirds over the next 50 years if present trends continue. It is not set in stone that America must be prosperous. Before World War II, Argentina, like America, was one of the world's strongest economies --- but 50 years of profligate spending converted Argentina into a third world nation. There is real risk in not balancing the budget. Of course, we hope that Congress will soon refer a balanced budget amendment to the states. But if they do not, the states must act.

Now, at the intellectual level, there is risk in everything. There is, a risk that the Sun may not rise in the morning. Just this year, astronomers have witnessed a distant star explode. Our own Sun may explode this evening and consume us --- there is no guarantee that the Sun will rise tomorrow. But still, it seems safe to say that the Sun will rise in the morning. The degree of risk of a "runaway" Constitutional Convention is of the same magnitude --- or should I say "minitude" as the risk that the sun won't rise tomorrow.

It is imperative that the nation balance its budget --- this is the real risk. We must not sacrifice the future out of a fear that the Sun won't rise. I would suggest that we owe no less to future generations.

BALANCED BUDGET AMENDMENT: FAITHFUL DELEGATE PROVISION: Text

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