Superwonk Alert! Why the Founders Stand Behind Every Single Bit of the Compact for a Balanced Budget


The Compact for a Balanced Budget is an interstate agreement that advances, proposes and ratifies a federal Balanced Budget Amendment in a single state legislative bill, which is activated by a single congressional resolution. In essence, the Compact pre-commits 38 states (the ratification number) to the entire constitutional amendment process in advance, so that a specific, pre-drafted federal Balanced Budget Amendment is voted up or down within 24 hours at the convention it organizes. The Compact’s amendment process is set in motion by a congressional resolution, which can be passed with simple majorities and no presidential signature. The congressional resolution both calls the 24 hour convention contemplated by the Compact and pre-selects legislative ratification, avoiding a second trip to Congress.

What follows is a column that only a super policy wonk will love. Seriously. If you are not a super policy wonk, you probably will not want to read any further. But if you are… strap on your seatbelt because you are about to launch into a full-blown exposition on the research showing conclusively that the Founders and the Constitution stand behind the laser targeting of the Compact for a Balanced Budget to a specific federal Balanced Budget Amendment.

There is No “Constitutional Convention” in the Constitution

While we recognize that the term "Constitutional Convention" has been popularized, and the terms "Article V Convention" or “convention for proposing amendments” are less well-known, words really do matter.

Neither Compact for a Balanced Budget nor any other serious Article V effort is seeking to organize a “constitutional convention” such as the Philadelphia Convention of 1787, or as is found in many state constitutions. No authority for a foundational “constitutional convention,” which has the inherent power to form entirely new governments and constitutions, exists anywhere in the United States Constitution. The Constitution only provides for two kinds of conventions—a convention for proposing amendments and a convention for ratifying amendments. As this fact illustrates, not every “convention” that can make constitutional changes is inherently a foundational “constitutional convention.” For instance, nobody ever calls a ratification convention a “constitutional convention.” No one seriously claims that a ratification convention can make its own rules, amend the amendments submitted for ratification, “runaway” and form a new government or constitution. Everyone recognizes that a ratifying convention is just that—a convention that is limited by the Constitution to ratifying amendments proposed by another body. It is just as clear that a convention for proposing amendments under Article V operates subject to the limitations of the Constitution. This is because the proposals of a convention for proposing amendments are expressly subject to the same limitations and ratification requirements as amendments proposed by Congress.

This conclusion is also supported by the drafting history of Article V. Significantly, James Madison’s notes on August 6, 1787 evidence an early version of Article V that empowered Congress to call a convention on the states’ application. Interestingly, there was no ratification requirement in that version, which means that the original conception of the Article V convention indeed was one that would function without being subject to constitutional limitations. Later, on September 10, 1787, Madison’s notes evidence another version of Article V, in which a convention was no longer mentioned; instead, Congress was charged with proposing amendments on Application of the states, subject to a ratification requirement. Hamilton even added further limitations relative to the use of the amendment power to constrain the slave trade. Ultimately, on September 15, 1787, at George Mason’s request, a “convention for proposing amendments” was substituted for Congress in the previous formulation of Article V. But when an effort was made to strike out the ratification requirement, essentially to return Article V to the original version in which a true “constitutional convention” would be triggered, that effort was rejected not once but twice! Additionally, a further limitation barring amendments that would deprive states equal suffrage in the Senate was added. This history is significant because it shows that the state-initiated mode of proposing amendments was meant to operate under the limitations specified in the Constitution, rather than as an independent sovereign foundational “constitutional convention,” like the Philadelphia Convention.

Thus, a “convention for proposing amendments” can no more constitutionally declare a new form of government or change the ratification requirement specified in the Constitution, than a ratifying convention could change the amendment submitted to it for ratification. Further, being organized under the Constitution based on the "Application" of the states, the agenda of a convention for proposing amendments is necessarily limited to what is requested in that Application.

The Application Controls the Convention for Proposing Amendments

To see why, it is important to return to the next-to-final draft of Article V and see how it was amended into the final draft in the Report of Proceedings from the Philadelphia Convention here. As shown in the foregoing hyperlink, the next-to-final draft of Article V placed the power to propose amendments in the hands of Congress on “Application” of the state legislatures. Because this mode of amending the Constitution was meant to allow the States to propose the amendments they desired, it is clear that Congress was not supposed to draft the amendments (Congress already had the parallel power to draft and propose amendments by a two-thirds vote of each house). Thus, the only source of the amendments that Congress would propose under this next-to-final formulation of Article V would have had to originate from the “Application” that the states advanced. Of course, the final draft of Article V replaced Congress with a “Convention for proposing amendments” as the proposing body; but nothing in the Report of Proceedings suggests that the Founders meant for the Application to stop furnishing the text of desired amendments, as before.

In fact, “applications” were a common way of petitioning Congress for specific relief of all kinds during the Founding era. For proof, visit this Journal of the Continental Congress and read page 189 (June 1780 application from New Hampshire) and page 331 (October 1780 application from New York). There is nothing in this custom and usage to suggest that the “Application” for an Article V convention could not also petition for the proposal of specific relief in the form of the proposal of one or more specified amendments by convention. It would be odd to suggest that the Founders intended to deviate from this common and contemporaneous understanding of the nature and power of an “Application” to Congress.

Taken together, this evidence of the drafting history and public understanding of “Application” at the time of the founding strongly supports the conclusion that the states hold the power to specify desired amendments in their Application (as in the next-to-final version of Article V), notwithstanding the replacement of Congress with a convention as the proposing body triggered by that Application. Indeed, because the meaning of “Application” can only be understood by reference to the pre-Constitutional application power of the states, the Tenth Amendment requires that Article V be construed as protecting that reserved power of the states.

This conclusion is supported by everything the Founders contemporaneously said about the Article V convention process.

  • Exhibit A: read Tench Coxe’s representations during the time of the ratification debates. He said, “If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.” Coxe further explained, "[t]hree fourths of the states concurring will ensure any amendments, after the adoption of nine or more." Notice that these statements clearly indicate that two-thirds of the states would specify the desired amendments in their Article V application.

  • Exhibit B: read Federalist No. 43, notice how James Madison says the power of the states to originate amendments is equal to that of Congress. This could only be true if the Article V Application specified amendments and if the Article V convention were an instrumentality of the states in proposing the specified amendments.

  • Exhibit C: read Federalist No. 85. Notice also that Hamilton emphasizes how two-thirds of the states (then “nine”) would seek “alterations” and “set on foot the measure” and that we can rely on state “legislatures” to erect barriers. Obviously, an amendment is the “alteration” or “measure” of which Hamilton writes. This confirms the amendment-specifying power of an Article V application, which alone is entirely controlled by two-thirds of the states through their legislatures.

  • Exhibit D: read George Washington’s 1788 letter to John Armstrong, notice how he says “nine states” can get the amendments they desire, yet again in reference to the two-thirds threshold for calling an Article V convention.

  • Exhibit E: Read Federalist George Nicholas’ June 6, 1788 statement at the Virginia convention that state legislatures would apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” Notice how Nicholas’ conclusion is only “natural” on the assumption that the states would typically organize a convention after first agreeing on the amendments, presumably specified in their Article V application.

  • Exhibit F: during early 1799, James Madison’s Report on the Virginia Resolutions observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional. Specifically, after highlighting that “Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose,” Madison wrote both that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, and also that two-thirds of the Legislatures of the states “might, by an application to Congress, have obtained a Convention for the same object.” Again, the Application is the stated source of the desired amendment. Read the source at pages 403-04.

The bottom line is that every significant historical figure who addressed the issue assumed or specifically represented that the states’ Article V “Application” would advance the amendments desired by the states for proposal by the Article V convention. This assumption and representation is consistent with the conclusion that the Article V “Application” used to trigger the convention call would ordinarily include the text of one or more desired amendments, and the convention would have the instrumental role of ensuring the desired amendment or amendment were actually proposed.

We respectfully submit to you, there is no evidence suggesting otherwise.

If they were alive today, George Washington, James Madison and Alexander Hamilton would be no more impressed with the notion that a convention for proposing amendments could ignore the Application that triggered its call and do whatever it wanted, than you are impressed by the notion that a ratifying convention could rewrite the amendment submitted to it for ratification.

In fact, the idea that a “convention” intrinsically has autonomous sovereign drafting power is totally inconsistent with 18th Century usage. The word convention was simply a synonym for an assembly. You can see this by reviewing the term in 18th Century dictionaries here. Numerous scholars have demonstrated that there were many kinds of conventions at the founding era, including a convention for proposing amendments under Georgia’s own state constitution. It is simply factually untrue that a defining characteristic of a “convention” at the Founding era was the ability to form new governments from scratch. Given such usage, there is no reason to interpret an Article V convention as having sovereign government-creating drafting power by virtue of being a “convention”—especially in light of the text and context discussed above.

As to the claim that there would be no need for a proposing convention if it did not possess autonomous sovereign drafting powers, or that a proposing convention must necessarily have more deliberative authority than a ratifying convention, this argument is specious. The proposing convention was made necessary by the limitations of 18th Century technology. There was no modern instantaneous communication. Some coordinated means of ensuring that the amendment specified in the application would actually be proposed had to exist. It is perfectly sensible that a proposing convention was introduced into the language of Article V simply to ensure the necessary coordination occurred among the states, represented by their agents (delegates) at the convention, so that what was proposed actually was what the states asked-for in their application. Indeed, that is the entire reason why the next-to-final version of Article V, which had Congress proposing amendments on application of the states, was replaced with a “convention for proposing amendments.” Most of the Founders, and especially George Mason, did not trust Congress to propose the amendment or amendments that would otherwise have been advanced in the states’ application under the next-to-final formulation of Article V.

Lastly, it is very interesting that in 1957, the State of Indiana drafted and passed an “Application” following precisely this interpretation. Check it out here. It seems to have been understood before the “runaway convention” controversy arose in the 1960s that the application could be used by the states to very tightly target the amendment process under Article V. And here’s what Professor Antonin Scalia said about Article V during an AEI panel discussion in the 1970s: “There is no reason not to interpret it to allow a limited call, if that is what the states desire.”

We at Compact for America Educational Foundation hope you will find this evidence as compelling as we have. This evidence has persuaded numerous experts to our point of view who did not previously have the same perspective. You won't be alone.

The Compact for a Balanced Budget and its activating congressional resolution are simply the practical means of ensuring the Founders’ vision is actually enforced given the various misinterpretations of Article V that have been advanced in the past. By wrapping the Article V amendment process in centuries of case law enforcing compacts, the Compact approach to Article V ensures all legal and political disputes surrounding Article V are settled before the untested process of convening an Article V convention is initiated.

The Founders and the Constitution stand behind the Compact for a Balanced Budget.

#articleveducation

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