A Final Vindication of the Principle of State Sovereignty in Article V
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In My Judgment - Why the Time is Right for Compact for America by Judge Harold R. DeMoss, Jr.
September 11, 2014
There has been a dramatic decrease in the willingness of the average party official and office holder to recognize that there is some common ground that we ought to try to define and pursue, and to stay away from the extremes that both the right and the left contend are the only solutions we have for the problems that face our nation. There have been time and time again efforts to define a balanced budget amendment that could pass the two-thirds vote of Congress...and it has never happened. In my judgment, the reason these efforts have failed is because the interests of the individual members of the U.S Senate and the House of Representatives are simply so entangled in the question that we can’t expect them to decide on something that will mean that their power, their influence, and their control has to be limited.
The use of an interstate compact agreement has the advantage that it gets the decision-making away from the tangle of political intrigue and everything else that is the present situation in the U.S. Congress. It shifts the decision-making to the state legislatures – a totally separate group of people who hopefully could look at the situation and recognize that there are common aspects that would be beneficial to the country as a whole that we ought to be able to agree on as the text of the balanced budget amendment.
If we don’t make some fundamental structural changes in the system under which the U.S. government and the states function, we are destined to get swallowed up and drowned in the inability to pay for what we have said we want to do. It is sad that most of the promises that we have made are promises that have good reasons for them. But what we cannot do is to promise to pay for something if we don’t have any money and where having to pay for it really doesn’t mean very much. This is where we have gotten lost, in my judgment, where every time members of Congress want to talk about spending, they focus on earmarks and special events that will help them get reelected in their home district, rather than focusing on resolving the nation’s annual deficit and outstanding debt obligations.
The concept that our framers decided upon in the beginning was a republic in which the national government would have specific and limited powers and the state governments would continue to do all of the responsibilities of government that they were then doing at that time. Certainly, in 240 years, many of the aspects of our lives have changed dramatically. The federal government has, for good or for bad, assumed a whole set of powers that are not specifically enumerated in the Constitution under the powers of the Congress or the Article I Powers. So we have accommodated in some ways the change in the lifestyle that we all live under through this silent amendment of the Constitution. But the ultimate power to amend the Constitution is unquestionably in the people. It is not in the federal government, not in the Supreme Court, not in the U.S. Congress, and not in the President.
Article V of the Constitution defines the process for amending the Constitution. The primary method for amending the Constitution is the decision by a two-thirds vote in both the Senate and the U.S. House as to the text of a proposed amendment. When that two-thirds vote is adopted, then the proposed amendment is submitted to the states for ratification.
There is an alternative method for proposing amendments which involves the application by two-thirds of the states for a convention to consider and possibly propose an amendment or amendments to the Constitution. There have been some preliminary efforts at putting such a convention together, but it has never actually developed. All amendments to our Constitution that have been ratified to date have resulted from the two-thirds vote in both the Senate and the House as the initiating method.
Now, the problem we have today in Washington is, in my judgment, that it would be impossible for either side to develop a two-thirds vote in both the Senate and the House. I say this given that the leadership is split between the two parties and given the level of partisanship that has developed and continues to cause more and more instances in which the parties are pushing each other to ultimate limits and showdown positions. So if structural change is what is needed, then we must take advantage of the other way to initiate the process of amending the Constitution.
That other way is one that arranges, solicits and gets 34 states, or two-thirds of the states, to apply to Congress to call a convention of the states for the purpose proposing amendments. The difficulty in that, and the difficulty that people have run into in trying to pull that together, is that we end up with many, many different efforts going on at the same time to accomplish the purpose of applying for a convention, and more importantly, to accomplish the purpose of drafting desired amendments. Without structure and purpose, in my judgment, it is highly unlikely that such a convention to propose amendments could be organized, developed and pulled together to generate meaningful reform in any reasonable timeframe. That is why it is now time to consider an interstate compact agreement to solve this problem.
Historically, there have been interstate compacts relating to a wide range of topics. The most frequent one has been the question of state boundaries and there many compacts between one, two, or three states that define in detail the boundaries that separate the state governments. There have also been interstate compacts dealing with circumstances where there is mutual desire to regulate ports. For instance, one of the first compacts was the compact between New Jersey and New York for managing and operating the Port of New York. Interestingly, a number of current interstate compacts have over forty member states, including compacts for education, detainers of prisoners, driver license reciprocity, emergency management assistance, probation and parole monitoring, and child placement. So this concept of an interstate compact, an agreement among the states to work together to solve a common problem, has many, many examples in which it has proven helpful and beneficial.
The advantage of the interstate compact is that we have better control and definition of what it is we want to achieve. It is true that in order to have an effective interstate compact, the two legislative states that are joining the compact must each adopt identically the same provisions. So the question of the content of the interstate compact itself, and the question of the content of the proposed amendment, will have to be negotiated, hammered out, compromised, and argued back and forth. The result would hopefully be a set of text that it is reasonable to expect that, in the case of this specific Compact for America, 38 states would say yes, we want to have a convention to adopt this proposal, and simultaneously say yes, we want to ratify this amendment if it is so adopted at the convention. So the use of the compact would compress into one simple process what would otherwise involve an awful lot of communication, negotiation and wrangling back and forth over a number of years.
The opportunity that this presents is to focus the attention of the decision-makers on a need that is specific. In this particular instance, we as a nation need to define some limits as to when, where, and how we spend our money and also when, where and how we borrow our money. The circumstances requiring the need for a balanced budget seems to me to be almost inherent in any intelligent discussion on how we should run the nation’s money affairs. That is certainly what we as individuals have to live with and it is what many of the states have had to live with in terms of balancing their own individual budgets. In concept, I don’t think there are very many people that would say, “Oh no, we don’t want a balanced budget amendment.” What we run into is the individual ideas that many people on the left and many people on the right say have to be in a balanced budget amendment or else they will not vote for it. Those things that they want to stick in inherently create opposition in the other side, so nobody does anything because they cannot get the necessary votes.
The work that Compact for America has done in trying to flesh out the text of the balanced budget amendment is a very, very good exercise. Hopefully, it will have something that would appeal to the wild progressives on the left and something that will appeal to the Tea Party conservatives on the right. In other words, a broad consensus that would recognize that for the good of all we need to have some Constitutional limits on spending and some Constitutional limits on borrowing.
I truly don’t know whether the concept of a balanced budget amendment would be sufficiently attractive that we can get 38 states to join the interstate compact that would set forth in specific detail the circumstances of this specific amendment process. It may well be that our economic system has changed so dramatically and the popular vote is so difficult to educate in a way where they too would interpret this in the same way that I see things, that it is possible this exercise will prove futile. But it is worth the effort to make the attempt because, in my judgment, if we don’t do anything to put structure and limits on the nation’s financial affairs, we will end up with the circumstances of Greece or some of the other countries that have had massive runaway inflation, massive borrowing and the resulting crushing negative impact on both the average citizen and the government itself.
The current role of the governors in this process is a matter of Compact for America’s own planning and definition, but there is precedent for such consideration. In the typical case, an interstate compact arises in instances where the executive branch of a state government recognizes that they must have agreements in place to address situations in which more than one state has an interest in how something works. It is by reason of the action of the executive branch of the state – the governor – that the compact is initiated. And in most cases, party or house leaders on the floor will then carry the compact legislation forward on behalf of the governor. So the involvement of the governors in the typical interstate compact is inherent, normal and inevitable.
Now there is nothing in the language contained in Article V of the U.S. Constitution that refers to the role of the governors. However, I am persuaded that designating a leading role for the state governors is the way we ought to go because it is certainly the typical way in which most interstate compacts get put together. And using the governors greatly simplifies the process of organizing and pulling together and getting the necessary actions by the individual states. Once the governors are able to bring 38 or more states together to join the Compact for America, we can then say to the U.S. Congress - in a complete package - here you are friend. 38 states have joined this interstate compact. They have adopted it through their legislatures. They have indicated their concurrence in the text of the balanced budget amendment that will be proposed at the convention. And they have also indicated their concurrence that they intend to ratify the balanced budget amendment when the convention adopts the proposed amendment.
The process of ratification of amendments is what has helped our system of government to maintain itself and accommodate itself to the many, many changes in our lifestyle. Just in my own lifetime, we have moved from the Model T Ford to the U.S. Space Shuttle and the International Space Station. What we are wrestling with, in my judgment, is the need for a different set of decision-makers to address the appropriateness of this contention that we are making, which is that we must find a way to live within the revenues that we can generate. Our nation’s borrowing habit has become unsustainable. There has to be a process to prevent more unnecessary debt from being added on top of what is in the outstanding government debt right now. That can only come from a decision-maker and a process that is removed and not controlled by the historic politics in the U.S. Congress.
We are at the point, in my judgment, where if we don’t do something dramatic to change the structure, we will end up buried in debt. And more than the decision-makers right now, which includes my generation, and the generation behind me, the burden is going to end up on the next generation’s children and grandchildren. So I always come back to my contention that the worst thing for us to do is to do nothing. It may well be that the text of any balanced budget amendment will have things in it that some people will say shouldn’t be there. But the balanced budget amendment set forth by Compact for America will be far better than the nothing we have right now.