Calling for a constitutional convention

National Review, July 26, 1985 by John T. Noonan, Jr.

SIX OR MORE years ago, in the Presidency of Jimmy Carter, the conviction spread in the White House that 34 states would soon have voted to call on Congress to convoke a convention to amend the Constitution to mandate a balanced federal budget. President Carter's instinct was to be cooperative with such a constitutional procedure, and he set up a task force to study how the executive branch could help Congress plan for the convention. Chairmanship of the task force was entrusted to Walter Mondale.

Soon the emissaries of big welfare and big unionism and other beneficiaries of federal largesse who believe they have a large stake in deficit spending had prevailed on the Mondale staff to take a view different from the President's. When the task force met again, its question was not, "How can we cooperate with a convention?" but "How can we beat it?" The answer that came by inspiration was, "We can say a convention can repeal the Constitution."

Thereafter there was a spate of articles in magazines such as Ms. lamenting the dangers a constitutional convention entailed. "They," it was whispered, and even said in boldface type, "plan to take the Bill of Rights away from you." The first Amendment and the Fourteenth Amendment, it was insinuated, would be up for grabs. No group likely to be offended was neglected by the foes of a convention. Women and minorities were the special targets cultivated. A return to the nineteenth century, perhaps to pre-Civil War Americaa, was the fate that, it was intimated, a runaway convention held in store.

Propagandists were joined by scholars, who on their own grounds and in their own ways engaged in a pedantic parade of the possibilities inherent in a convention. Larry Tribe of Harvard Law School was unrestrained in his apocalyptic predictions, speaking of a convention as the potential cause of national tumult and trauma. Gerald Gunther, an eminently respectable professor of constitutional law at Stanford, basically liberal but fiercely independent in his thought, reached the same conclusion as the flamboyant doomsayers. Charles Black of Yale University took the quirkiest position. A convention, he maintained, could only be held for amending all of the Constitution. All the calls made by the states since 1900 for conventions to act on particular issues were invalid. Only calls for "general conventions" could set the procedures in motion.

None of these academic authorities betrayed any sympathy with the substantive purpose for which a majority of the states were calling for a convention. None of the professors seemed to think that a balanced-budget amendment was a good idea by whatever means it was achieved. Their unconcealed skepticism about the amendment disposed them to relish the objections they produced to the means most likely to bring it into being.

Most of the heavy shelling of the convention menthod of achieving a balanced budget came from writers to the left of center. Recently, however, their fears and even their arguments have affected some tried and true conservatives. They see in a convention the opportunity of a liberal elite to walk away with the Constitution. They note planning for constitutional changes by the Center for the Study of Democratic Institutions and by a group headed by Douglas Dillon and Llyod Cutler. They believe that a convention called by Congress to consider and act on a balanced-budget amendment might end by enacting a series of amendments, from elimination of the Electoral College to a single nine-year term for the President. They ask what guarantees anyone can give that a runaway convention will not do what they dread. These questions require seasoned consideration and response. They arise at an especially critical time. Thirty-two states have asked Congress to call a convention to consider the balanced-budget amendment. Only two more states need act for Congress to be required to make the call. Michigan is expected to act in September or October of this year. Connecticut, Minnesota, Montana, and Washington are all states in which action may be taken within the year. The United States Senate in all probability will consider the amendment itsefl some time after July 11; but what the House of Representatives does will undoubtedly be influenced by the convention calls coming from the states. It would be tragic if conservative criticism of the means necessary to achieve the goal should destroy a remarkable opportunity to make fiscal sanity a constitutional requirement.

Already Amended

MOST AMERICANS agree that the Constitution of the United States, although not divinely revealed, is as close to perfection as human wit can reach. The Constitution has allocated power well between the electorate, the states, and the three branches of the Federal Government. It has provided essential checks and balances, and safeguards for Fundamental liberties. Only its provisions touching on human slavery have become obsolete and disgraceful. Since the first ten amendments, which can be read as virtually part of the original system, only 16 amendments in about two hundred years have been required to keep it in working order. Americans generally, and conservatives in particular, do not want any tampering with its basic provisions.