Shades of the Founding Fathers

The drive for a new Constitutional Convention

Wanted: statesmanlike figure bearing close resemblance to James Madison (or someone who at least has read him) to direct possible second Constitutional Convention devoted to balancing budget and perhaps other matters. No Keynesians need apply. Address: Box 1787, c/o U.S. Congress.

The ad has not yet been placed, and the convention has not yet been called, but much of official Washington is beginning to be afraid that it might be. Since the one and only Constitutional Convention of 1787, there has rarely been such a determined effort to convene another. Altogether 27 state legislatures have voted to call a convention to approve an amendment requiring a balanced federal budget. The National Taxpayers Union,* which is leading the drive, estimates that the necessary 34 states will be reached by summer.

The issue has already been injected into 1980 presidential politics. Staking out political ground to the right of Jimmy Carter, California Governor Jerry Brown has supported the movement for a convention. Over the indignant opposition of many fellow Democrats in his state, he has arranged for speaking engagements around the country to promote the convention.

The prospect of a Constitutional Convention is unnerving for most members of Congress. They fear they will be moving into a constitutional no man's land uncharted by the founding fathers. Article V of the Constitution simply provides that a convention will be called when two-thirds of the state legislatures petition Congress for one. Any amendments adopted by the convention must be ratified by three-quarters of the states before taking effect. There is no evading the clarity of the text. As Alexander Hamilton wrote in Federalist Paper No. 85, "The words of the article are peremptory. Congress shall call a convention. Nothing in this particular is left to the discretion of that body."

Congress, however, must attend to all the not-so-trivial details of such a convention. How will the delegates be chosen? Will the states have equal representation, as in the U.S. Senate, or will their votes be weighted according to population? How long can the convention go on? Above all, must it stick to the issue for which it was called, or is it free to consider other matters as well? The convention can certainly be restricted, declares U.S. Attorney General Griffin Bell. "Limits can be set," he says. "Congress has a duty to do so." Paul Freund of the Harvard Law School agrees: "Since the Constitution is silent on details, the details become a political question. Since Congress issues the call, it can define the jurisdiction of the convention."

Others are not so sure. They cite the example of the first Constitutional Convention, which was called to amend the Articles of Confederation and ended up forming a completely new government. Barber Conable, a conservative Republican Congressman from upstate New York, warns against "constitutional Russian roulette." Such a convention, says Constitutional Scholar Raoul Berger, would be "the town meeting of town meetings." Inevitably, he feels, delegates would press for such causes as making affirmative action mandatory, outlawing abortion, banning school busing, reducing the power of the judiciary. Says Howard Jarvis, apostle of California Proposition 13 but no fan of the convention route to achieve his goals: "A convention would give every crackpot a chance to write the supreme law of the land."

As some liberals contemplate this approaching forum, they fantasize a runaway mob repealing the entire Bill of Rights. Others are less anxious about such a possibility. Says Jerry Brown: "The idea that the American people want to junk the Bill of Rights is absurd. I think the American people believe in the Bill of Rights, and they also believe in a balanced budget. The idea that all the giants lived in the 18th century shows the same lack of confidence that is troubling this country in other respects." Senate Minority Leader Howard Baker is also unperturbed. A Constitutional Convention, he feels, would "limit itself. I have a fundamental confidence in the people who would attend."

any conservatives and liberals alike doubt the wisdom of requiring an annual balanced federal budget. In a period of recession, they argue, a deficit may be necessary to stimulate the faltering economy. Says Senate Majority Leader Robert Byrd: "At the very time when flexibility is needed to deal with serious economic fluctuations, an absolute requirement to balance the budget would tie the hands of Congress."

Conservatives fear that the Government would be tempted to balance the budget by raising taxes rather than cutting spending. Many of them favor an amendment proposed by, among others, Economist Milton Friedman. Instead of a flat requirement that the budget be balanced, Friedman urges limiting any increase in annual spending to the amount of growth in the gross national product; if the rate of inflation exceeded 3%, however, the spending increase would be trimmed. In times of emergency a two-thirds vote of Congress could authorize additional outlays. "In a sense, the Government has always balanced its budget," says Friedman, "if not by what we call taxes, then by the hidden tax, of inflaion." Alan Greenspan, chairman of the Council of Economic Advisers under President Ford, agrees. There is no way of writing an amendment to ensure a balanced budget, he believes. The complexities are insuperable. He favors an amendment that would require all money kills to be passed by a two-thirds vote in both Houses of Congress, instead of the present simple majority.

A balanced budget is traditional Republican Party doctrine, but the G.O.P. is split on the issue. At a meeting of party officeholders last week in Easton, Md., a constitutional amendment to balance the budget was rejected in favor of one to limit spending. Supporting the balanced-budget amendment were such presidential aspirants as Ronald Reagan, Howard Baker, Robert Dole and John Connally. Baker favors a proposal to require a balanced budget unless overruled by a two-thirds vote of both houses. "This formula," he says, "satisfies the principal concerns about a balanced budget by permitting enough flexibility for Congress to approve a deficit in time of economic or military emergency."

Other leading Republicans, including National Party Chairman Bill Brock and House Minority Leader John Rhodes, were opposed. Said Rhodes, who objects to any kind of amendment involving fis cal policy: "I don't like constitutional gimmickry. If the American people want a balanced budget, they should elect a Republican Congress." Rhodes echoes other authorities who believe that the Constitution should not be encumbered with specific policies that can be settled by the normal political process. But the House minority leader was challenged by congressman Bud Shuster, chairman of the House Republican Policy Committee.

Pointing out that 103 of the 159 House R publicans had sponsored some kind of constitutional amendment to achieve a balanced budget, Shuster said of Rhodes:

"I think he is wrong. He is obviously speaking for himself and not for a majority of Republicans." Dole warned that if the Republicans do not soon reach a consensus on the subject, they may for feit the issue to the Democrats. "I'm concerned that this be a Republican issue," said Dole. "But we're about to lose it."

About 65 versions of a budget-balancing amendment have been introduced in Congress. Within a month, the Judiciary Committee in each house will begin hearings with a lengthy list of economists and lawyers, most of whom will warn of the enormous complexities in convening a Constitutional Convention, or in drafting an amendment to bal ance the budget. Says House Judiciary Committee Chairman Peter Rodino: "I would hope that the people in the states would pause, knowing that a responsible committee of Congress is looking at the matter." Delaying tactics have already begun. Senator Birch Bayh, chairman of the subcommittee on the Constitution, claims that only 16 of the 27 states voting for a Constitutional Convention have submitted valid petitions. In the case of the other states, he contends, petitions have not been received or have been improperly filed.

Judging by past attempts to call a convention, Congress feels it is justified in reacting slowly. Of three major efforts by the states this century to amend the Constitution by convention, one succeeded in forcing Congress to act; the other two eventually collapsed. At first, Congress resisted petitions from the states for a convention to require the direct election of U.S. Senators, who were then chosen by the state legislatures. But by 1912 enough petitions had arrived to persuade

Congress to yield to public pressure and approve the 17th Amendment, providing for the popular election of Senators. A quarter of a century later, a movement began to put a 25% ceiling on the federal income tax rate in peacetime. Because of confusion over petitions, it was never clear exactly how many states had voted for the resolution, so Congress procrastinated until support waned for what was called by its foes the "millionaire's amendment." In 1964 the U.S. Supreme Court's one-man, one-vote ruling provoked an almost one-man crusade by Illinois Republican Senator Everett Dirksen to overturn the decision by constitutional amendment. Five years later only one additional state was needed to call a convention, and Wisconsin became the battleground. The amendment was rejected by the Wisconsin legislature, and the movement died out.

Congress cannot count on the current drive subsiding any time soon. Even if Congress manages to block the budget-balancing amendment, the demand for cost cutting will continue. As Jarvis says, "The people don't want a convention. They want tax reduction." In the end Congress will have to take some action to appease public opinion. The whole Constitutional Convention movement would not have started in the first place if Congress and the Carter Administration had been more responsive to the public outcry for tax relief during a time of rapidly rising inflation. Congress has all the power it needs to curb spending; all it may lack is the will and the courage.

Realists to the core, the framers of the Constitution knew that there would be times when even the best of governments would resist the will of the people it claims to serve. The effect of Article V is that without actually being used, it can pressure Congress to make the kind of change that is desired by a substantial majority of the American people. -

* Founded in 1969, the union is a nonpartisan group of more than 100,000 members who fight for less government spending and lower taxes.

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