A Final Vindication of the Principle of State Sovereignty in Article V
August 22, 2016
Fed Up? This #GivingTuesday Be Heard
November 28, 2017
Compact for America Asks: Are You Ready to Upgrade? "Article V 2.0" is Here.
August 15, 2014
The Compact for a Balanced Budget is indeed a new cutting-edge technology for achieving constitutional reform. But some folks reject the Compact's streamlined "Article V 2.0" approach of consolidating everything states do in the Article V process into a single agreement among the states that is enacted once and everything Congress does in a single resolution passed once. To them, saving 10 years or more of time and requiring significantly less resources in terms of dollars and the manpower needed for the states to advance a powerful Balanced Budget Amendment is a bug, not a feature.
The Compact naysayers claim that the state-originated constitutional amendment process was deliberately designed to be a difficult, multi-staged, multi-session legislative process. Based on that premise, they either reject the plausibility of using Article V altogether; or they cling to the non-compact approach to states originating constitutional amendments; demanding that advocates of constitutional reform from the states wade into a 7 to 14 year process of securing 100 or more legislative enactments in multiple legislative sessions conducted in Congress and 50 state legislatures.
Specifically, these guys want Article V advocates to bypass any organization of the states, any agreement on the specific amendment text being pursued, and any agreement regarding the rules of the convention process and the delegate limitations. Instead, they first propose to pass 34 state resolutions applying for a convention, usually only with a vague topic to focus it. Then, the naysayers want Congress to pass a resolution calling the Convention, hoping at the same time that Congress does not pass federal legislation to control and game the convention. Then these folks want the states to pass additional legislation to appoint and instruct delegates to the Convention. After this is done, some of them propose to go back to the state legislatures yet again to pass further legislation or even state constitutional amendments to limit the scope of the Convention agenda and what the states are allowed to ratify. Then, years into the process, they want to conduct a Convention that could last anywhere from 6 months to a year. If the convention ends up proposing any amendment, then the Compact naysayers want Congress to pass another resolution to refer out any such proposal to the states for ratification (hoping Congress does not impose an impossibly short sunset date on the referral). And finally, if Congress does not impose an impossibly short sunset date on the ratification referral, they propose to wait up to 7 years (or longer) for 38 states to pass resolutions or convene conventions to ratify that proposal.
The Compact naysayers claim that there is no other choice but this arduous and uncertain decades-long process because that's what the Founders wanted.
They are wrong. Just like IBM and Cray Computer were wrong about the path of the microcomputer; just like Microsoft was wrong to cling to DOS for so many years; the Compact naysayers are failing to check their premises.
Simply put, although it is a groundbreaking approach to constitution reform, the Compact for a Balanced Budget actually fulfills the Founder's original vision of the state-initiated Article V amendment process being safe, streamlined, and certain.
This is apparent from the debate surrounding Patrick Henry's opposition to the ratification of the Constitution at the Virginia Convention. He opposed ratification because he thought the Constitution concentrated too much power in the federal government. He did not buy the argument that Article V gave states an equal power with Congress to propose amendments, as Madison contended in Federalist No. 43. He looked at the requirements of Article V as written and said it could never be navigated--not even with just 13 states in the union.
In response, the pro-ratification side argued that the opposite was true. Hamilton argued in Federalist No. 85 that the amendment process would be far easier than convening another constitutional convention. In remarks first published in book form on May 28, 1788, Hamilton wrote:
"But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution."
Hamilton clearly did not envision a multi-stage uncertain game of negotiation, deliberation, and give-and-take for the Article V amendment process. Instead, he told the world that the process would be quick and efficient--far more so than was the Philadelphia Convention.
The same points were reiterated by George Nicholas at the Virginia Ratification Convention on June 6, 1788. As first emphasized by Dr. Kevin Gutzman, Nicholas rejected the Antifederalist assertion that “amendments can never be obtained, because so great a number is required to concur." This is because, he argued, "[i]t is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.”
Nicholas further emphasized the targeted and efficient nature of the process: “[t]he Convention which shall be so called [under Article V], will have their deliberations confined to a few points;–no local interests to divert their attention;–nothing but the necessary alterations." There would be "No experiments to devise” with “the general and fundamental regulations being already laid down” by the custom and practice of past conventions.
This was the actual public understanding of the state-initiated process of amending the constitution at the time of ratification. Far from the Article V convention process being sold as an uncertain, multi-staged legislative quest, Patrick Henry's powerful arguments were overcome principally because the Founders promised that the state-initiated convention process would be a relatively easy, quick and certain way in which errors in the Constitution would be corrected.
The Compact for a Balanced Budget finally fulfills that promise. It is precisely the sort of cooperative, efficient, unified effort that the Founders envisioned for the Article V amendment-by-convention process. It simply fully exerts the states' conferred and reserved powers under the Tenth Amendment in leveraging the power of Article V. The Compact for a Balanced Budget is new tech developed by thinking outside of the box and by paying closer attention to first principles.