In 2012 New Hampshire’s legislature passed a Concurrent Resolution requesting an Article V Constitutional Convention of States, one of the two ways to amend the Constitution. ‘We’ did this, requesting a Balanced Budget Amendment to the US Constitution, in 1979 also, and a handful of times before that for other various reasons. On Wednesday, the House State Federal Relations and Foreign Affairs Committee will hear testimony on HCR9, which would rescind all requests for a Constitutional Convention.
If a Constitutional Convention is requested by 2/3rds of the States (34,) the Congress of the United States would then be bound by the US Constitution Article V and would have to call a Convention for the purposes of amending the US Constitution.
Article V says (emphasis added):
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.US Constitution, Article V
An Article V Convention has never been called in the history of our Constitution. All 27 amendments to the US Constitution have arisen out of Congress, which is the first means outlined as an avenue to change the Constitution. Those 27 were all subsequently ratified by 3/4ths of the States, and have been added to the guiding document by which our Government (is supposed to) govern.
What would be the rules?
The rules of a Constitutional Convention don’t exist, currently, and there’s no precedent to use. Who would choose the delegates, how many would each state be allowed to send, what would be the requisite qualifications?
These, and other questions, are all unanswered. Many presume that each state would receive the number of delegates equal to the number of electoral votes that state receives. If that’s the case – New Hampshire would get four. But who would select the delegates? The legislature of New Hampshire (Democrat Controlled?) Would the Governor appoint four? Would the people get a chance to vote directly?
The Constitution does not answer these questions. It’s possible that each state would get to select for themselves the process by which delegates are chosen. It is possible the US Congress would make the rules.
The original Constitutional Convention tossed the articles of Confederation in the trash, essentially, and made up new rules as they went. In the AoF, all 13 colonies would have had to ratify the document for it to have bearing. The Constitution changed that to 3/4ths.
Would the new Constitutional Convention be able to do the same thing? Nobody knows what the rules would be.
Several states have requested an Article V Convention for a single purpose, the Balanced Budget Amendment. Others have requested for various other amendments. The Constitution is unclear on whether these requests can be aggregated, or whether the many states have to ask for the same purpose. If the latter is true, it stands to reason that the Convention could meet only for the requested amendment, but again, no rules exist to limit it to that.
We could see new proposed amendments to repeal the Second Amendment, or severely limit it. We could see an amendment to codify Roe v Wade, or various other amendments. Given that California and New York would combine for a presumed 84 delegates (nearly 1/6th of the total presumed number,) it is unthinkable these ideas wouldn’t be brought up.
How many delegates would be required to approve an amendment out of the Convention? Would it be 3/4ths, the number of states that are required to ratify an amendment, or would it be a simple majority (270?)
The Federal Government currently has taken authority over education, healthcare, highways, roads, food, agriculture, drugs, and much more. None of this authority is expressly granted to the federal government under the Constitution.
We have seen judges and justices routinely make decisions that allow the federal government to govern over areas that the founders never envisioned.
If the Federal Government doesn’t live within the Constitution the way it is written currently, why would any new amendment or number of amendments box it in?
The Balanced Budget Amendment
On it’s face, the BBA sounds like a great idea. Let’s force the Government to pass only a balanced budget, much like many of the States are similarly bound.
New Hampshire’s request to Congress, as of 2012, is only valid for the purpose of considering and adopting a Federal Balanced Budget Amendment. It stands until an Article V Convention is called, or it is rescinded.
One of the proposed Balanced Budget Amendments in Congress has wording that requires Outlays to not exceed Receipts, unless a declaration of War is active.
It also declares Outlays not exceed one-fifth (20%) of the economic output of the United States. The average outlays from 1967 to 2017 was 20.7%, pretty close to the one-fifth proposal outlined in the BBA. Given that, we’ve still seen our federal debt skyrocket from approximately $326 billion in 1967 to over $22 trillion today. The debt has grown by over 6,700% and we’ve barely outpaced the one-fifth outlay mark.
So, assuming Congress (who loves to spend spend spend) is limited to balance the budget… how do they make that work?
Probably by raising your taxes. Chew on that.