File this one under “here we go again.”
Common Cause, the Brennan Center and other nonpartisan organizations are warning about the dangers of an effort to call a Constitutional Convention, purportedly to consider a “balanced budget amendment” to the U.S. Constitution.
A balanced budget amendment is a truly bad idea but a Constitutional Convention is an even worse idea, as constitutional interpreters as different as Harvard’s Lawrence Tribe Supreme Court Justice Antonin Scalia, and former Chief Justice Warren Burger have explained.
So what is all the fuss about?
As I wrote in 2014, lawmakers frustrated by their inability to change government policies of which they disapprove, and unable to amend the Constitution through the process that has given us all of the amendments we have, will periodically propose convening a Constitutional Convention.
Thus far, none of these efforts have yet succeeded—for which we should be very grateful.
Why do I say we should be grateful?
When activists clamor for wholesale changes or major revolutions in the status quo, they always assume that the changes that ultimately emerge will reflect their own preferences and worldviews. History suggests that’s a dangerous assumption.
As an alert from Common Cause and the Brennan Center recently warned,
The effort to call a constitutional convention to pass a balanced budget constitutional amendment is being led in part by the American Legislative Exchange Council (ALEC), an organization consisting of corporations and conservative state legislators. Advocates of such a balanced budget amendment claim that 27 states already have passed such calls. A major effort is underway in 2016 to obtain the seven more states they believe they need to reach two-thirds of the states, the number required by the constitution to call a constitutional convention.
It isn’t just ALEC. A variety of proponents of systemic change—liberal and conservative—want the states to convene a Constitutional Convention under provisions of Article V of the Constitution. They usually insist that the convention could be limited in scope to just their pet change.
Constitutional scholars disagree. The great weight of authority makes it clear that once a Convention is called, anything and everything would be on the table.
But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. There is also a real danger in calling together a group of people and asking them to amend a document that few of them understand.
Anyone who thinks that the public officials who take an oath to uphold the Constitution have actually studied it and understand it–are in denial. What they might do inadvertently to the Constitution is anyone’s guess.
As a recent USA Today editorial put it,
This year’s presidential election has seen more than its share of bad ideas, including deporting 11 million people, bombing Syria and Iraq until the sand glows, and enacting massive tax cuts or equally massive spending hikes.
To these we can add another: Sen. Marco Rubio’s call for a constitutional convention to draft amendments to balance the federal budget and impose term limits on judges and members of Congress.
Rubio’s convention is an invitation to constitutional mayhem and, even if it went as planned, his proposals could further poison our politics and hobble American leaders at moments of crisis.
And that’s the best-case scenario.
Sheila Suess Kennedy, J.D. is the Professor of Law and Public Policy in the School of Public and
Environmental Affairs at Indiana University Purdue University at Indianapolis and former Director of the Center for Civic Literacy. She is the Executive Editor for the Journal of Civic Literacy. This post was originally published on the blog, sheilakennedy.net and is republished here with the permission of the author.