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An Easy Choice for Constitutionalists: Burger vs. Reagan, Friedman & Scalia on Article V

Legislators across the Country are walking in President Ronald Reagan and Milton Friedman's shoes by sponsoring the Compact for a Balanced Budget.

At a time when the national debt was a fraction of what it is today, on May 23,1994, Reagan wrote: “We can’t depend on Congress to discipline itself . . . we must rely on the states to force Congress to act on our amendment. Fortunately, our Nation’s Founders gave us the means to amend the Constitution through action of state legislatures . . . . That is the only strategy that will work.”

Previously, during the 1970s and 80s, Friedman spearheaded an effort to organize a Balanced Budget Amendment-focused Article V convention in dozens of states.

Reagan and Friedman were not starry-eyed idealists motivated by hope and change. Their goal of a limited Article V convention was sustained by future Supreme Court Justice Antonin Scalia. At a 1979 AEI conference, Scalia declared: "There is no reason not to interpret [Article V] to allow a limited call, if that is what the states desire.”

And yet, there are constitutionalists who would rather rely on former Chief Justice Warren Burger in opposing Reagan and Friedman's dream of a state-originated Balanced Budget Amendment. Pointing to a 40 year old single page letter, in which Burger simply declared an Article V convention cannot be controlled, these constitutionalists warn of dire consequences from following Reagan’s, Friedman's, and Scalia's advice.

But whenever a constitutionalist quotes Burger favorably about a constitutional issue, that constitutionalist hasn’t done his homework. Burger was no champion of the Constitution's original meaning. He was appointed by Nixon to reverse the Warren Court. He didn’t. He preserved and expanded it instead. It is no wonder Burger got the Article V convention process wrong too.

Just ask George Washington. In a letter to John Armstrong dated April 25, 1788, Washington wrote: the “constitutional door is open for such amendments as shall be thought necessary by nine States” using the Article V convention process.

At the time, nine states represented the two-thirds threshold needed to apply to Congress for an Article V convention. Washington clearly believed that two-thirds of the states could target an Article V convention to “such amendments as shall be thought necessary.”

Want more proof than the words of the Chairman of the Philadelphia Convention? Then ask James Madison.

In Federalist No. 43, Madison wrote Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Think Federalist No. 43 was just pillow talk aimed at securing ratification? Not so. Madison was consistent in his belief the states could target the Article V convention process. For example, in his February 7, 1799 Report on the Virginia Resolutions, Madison emphasized just how laser-focused the Article V convention could be. Specifically, Madison wrote that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional; and also that the states “might, by an application to Congress, have obtained a Convention for the same object.”

Close to his deathbed, in August 1830, Madison wrote, “Should the provisions of the Constitution as here reviewed, be found not to secure the government and rights of the states, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution, according to a process applicable by the states.”

In short, constitutionalists must choose between the interpretation of Article V favored by Warren Court protégé Warren Burger and that of Ronald Reagan, Milton Friedman, and Antonin Scalia, which echoes the understanding of George Washington and James Madison.

That’s an easy choice for a constitutionalist who does his homework.

To help put scholarly boots on the ground in 10 states to spread the word and ensure constitutionalists do their homework, please click here.

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