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Commentary: Louisiana Can Help Force Congress to Balance Budget

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Legislatures will consider Balanced Budget Amendment in 2013 as states seek to limit Federal spending

After decades of evading tough decisions, the United States Congress (with the help of several Presidents) has run up a crushing $14 trillion debt.  As Americans contemplate what that means for our future, many are now looking to state legislatures to step in and take the lead in amending the Constitution to curb the Congress’ outrageous spending problem.

The Constitution provides for two methods of amendment.  The first is the only one that has been successfully utilized to date.  Under this familiar method, the amendment is initiated by the Congress, where it must gather a two-thirds majority in both Houses before being ratified by three-fourths of the states.

However, there is another method – one initiated by the states.  The relevant portion of Article V reads:

The Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… 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.

So, if two-thirds of the state legislatures apply for an amendments convention, the Congress must call such a convention.  The only discretion Congress has in the matter is to decide upon the method of ratification – whether three-fourths of the states shall ratify the amendments through their state legislatures, or through special state ratification conventions called for the purpose.

This provision for amendment was put into the Constitution because, as Alexander Hamilton put it in Federalist 85, “persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.”  Hamilton was surely prophetic in this point, as the Congress has shown no particular inclination to yield its authority to borrow subsequent generations of Americans into crushing debt.

Two possible amendments have been proposed in the state legislatures to deal with Congress’ profligate spending.  One, known as the National Debt Relief Amendment, passed the Louisiana legislature in 2011 by overwhelming margins in both houses.  That measure would require that any hike in the federal debt ceiling by Congress would itself have to be ratified by a majority of the state legislatures.

But more well-known is the Balanced Budget Amendment, which has passed both the House and the Senate, but never during the same Congress.  This amendment would require Congress to pass a balanced budget each year.  According to the Republican Study Committee, 16 states have currently endorsed a convention to call for such an amendment.  Nineteen more states would need to join the call before Congress would convene an amendment convention.

Not every state’s resolution is identical, and some contain language making it easier or harder for Congress to increase taxes or raise spending levels. The purpose of the amendment convention would be to resolve these differences.  Is a declaration of war sufficient to lift the requirement that year?  Can the difference between taxes and spending be covered by Treasury bills?  Is borrowing from the Federal Reserve allowed to cover expenditures? These questions would have to be answered.

The chief fear raised by opponents of such an Article V convention is that these aren’t the only questions that would be debated by the delegates.  Some worry that at such an amendments convention delegates may run wild, going beyond the designated purpose of the convention to instead strip away the rights to self-defense or free speech, for example.

Although the Constitution is not explicit on the matter, Hamilton in Federalist 85 said that “every amendment to the Constitution… would be a single proposition, and might be brought forward singly.”  If that pronouncement is taken to be the Founders’ original intent for the amendment process, the states and Congress would be within their rights to narrowly restrict the topics of debate and amendment at the convention.  Louisiana and other states could even provide for criminal penalties for their delegates should they decide to stray from their instructions.

Even if such a restrictions were ignored by convention delegates and not enforced by the courts, there is still one ultimate check on a “runaway convention.”  Each and every amendment passed by a state-called convention would still have to be ratified by three-fourths of the states, as required by the Constitution.  These is simply no way around this requirement.  This final firewall would ensure that no amendment without broad national support would pass.

Louisiana was one of the leaders last year in passing the call for the National Debt Relief Amendment.  Next year the legislature will have the chance to continue to lead where Congress has not, by passing a call for a Balanced Budget Amendment convention as well.

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  • foavc
  • ScottAmorian

    Mr Plummer’s article makes some incorrect statements about the Article V convention. 

    The State legislatures cannot properly call a Convention for a specific amendment.  Article V requires four distinct bodies, Congress, the State legislatures, the Amendment Convention, and the State ratifying conventions.  Each body must by distinct and free from influence of the others, otherwise they are not really distinct bodies.  The State legislatures may call the Convention, but they cannot direct it in any way.  Neither may Congress.  The Convention may not direct the actions of the State legislatures, the State ratifying conventions, or Congress for the same reason.  The State legislatures may not direct what the Convention may or may not discuss.  Period.  The bodies must remain distinct to prevent abuses of power.  This is an example of what is referred to as the separation of powers.  Each body is empowered in certain roles, while providing a check on the other bodies.

    Plummer notes that “The only discretion Congress has in the matter is to decide upon the method of ratification – whether three-fourths of the states shall ratify the amendments through their state legislatures, or through special state ratification conventions called for the purpose.”  This is almost correct.  Congress has the ability, though not the proper right, to determine whether two-thirds of the State legislatures have applied for an application.  The reason for having a Convention, properly called a Civil Convention as opposed to a Convention called by Congress, properly called a Congressional Convention, is because Congress is assumed to be corrupt and abusive of its powers.  If Congress always did its duty there would be no need for the Civil Convention.  Congress is assumed to be undesiring of giving up its power.  Therefore, Congress cannot be the authority in determining whether a Civil Convention has been called.  Congress will almost always find reasons for saying that the Civil Convention has not been called, so that its members can avoid having to give up power.  The States themselves, not Congress, must be the determiners of whether a Civil Convention has been called.  To give Congress that power is a political game.  The State politicians can score political points by submitting a Call for Convention to Congress, but they can do so without really expecting anything to be done.  By doing so, the State politicians gain power locally while at the same time they keep the graces of their power hungry party leaders, who are deeply tied to Congress.  Congress is being given discretion in determining whether two-thirds of the State legislatures have applied for the Civil Convention, but this is not a proper power.

    Nothing is stopping the States from holding a pre-convention to determine what needs to be changed in the Federal government and recommending changes.  Nothing is stopping the State legislatures from pre-determining that they will only ratify those changes.  Nothing is stopping the States from organizing the State ratification conventions before the Civil Convention is called and asking those bodies whether they will only support certain changes in the Federal government.  Through this mechanism of predetermination the State legislatures can prevent the runaway convention, and be in keeping with the letter of the Constitution, and the idea of the separation of powers.

    With all that said, I do not see BBA happening.  One of the reasons we have a Federal government is to enjoy the benefits of national credit.  The problem is not debt.  The problem is the abuse of the rights of the people in direct conflict with the Ninth Amendment, which protects the rights of the people.  One generation cannot enrich itself at the expense of another.  A majority cannot create tax slaves of the minority.  The problem is the lack of substantive enforcement of the terms in the Constitution, in this case the Ninth Amendment.

    If Louisiana wants to contribute to the cause of ending the financial abuse by the Federal government, Louisiana would be better off promoting change by making itself a living example of better government.  Perhaps, in the not so distant future, after the US economic system collapses, and the majority of citizens realize that they have made a horrible mistake supporting leftist statist practices, the people will look for working examples of political systems that are effective and credible, and we will turn once again to practices in keeping with rationality and morality, those “Laws of Nature and of Nature’s God” that you once heard about.  That will not happen with the BBA. 

    National networks of State politicians play this game with the citizens.  The States have constitutionally mandated balanced budgets.  OK, fine.  But the States are really creating massive debt by using the Federal government to run those debt inducing programs that ensare their citizens in debt.  The State may be forbidden from running up debt to provide free healthcare to everyone, but the national networks of politicians can use the Federal government run those programs.  The Federal politicians gain political power by running those programs, making themselves the good guys in the eyes of their constituents.  The State politicians gain power by saying that they have a balanced budget, so they are the good guys in the eyes of their constituents.  The taxes to pay for those programs are disbursed to the citizens of the State through national taxes and Federal mandates to the States.  All of the politicians win. The State’s citizens are stuck with the debt through the Federal government.  It is financial smoke and mirrors.  The State budget is balanced, but the State economic system has massive imbalance.  Having a constitutionally required balanced budget does not prevent a State from subjecting its citizens to massive debt in the form of Federal tax debt.  The national network of politicians will fight tooth and nail to keep this system from ending.

    If Louisiana really wants to draw the line in correcting the abuse of Federal power, I would suggest that it retain its own constitutionally required balanced budget, and then forbid its citizens by law from accepting debt-ridden Federal handouts, while at the same time forbidding the Federal government by law from taking money from its citizens to pay for handouts to citizens in other states.  Then it would have a true balanced budget, not only in the State government, but in the State economic system.  That would be in keeping with people’s rights protected by the Ninth Amendment.  The people in a majority of States may not enrich themselves by having the Federal government use law to take money from people in a minority of States.

    I have written at length about the Civil Convention here:  http://usconstitutionalcourt.wordpress.com/2012/09/08/a-limited-convention-to-amend-the-us-constitution-fourth-draft/.