Avoid a constitutional crisis

Sam, where are you now when we need you? We mean Sam Ervin, of course, not for his Watergate watchdogging but for his lonely battle to save his country from the potential muddle of an unguided constitutional convention. As such a convention reaches a new brink of possibility, the United States more than ever needs legislation to settle procedural questions in advance. Mr. Ervin twice steered such legislation through the Senate a decade ago. The American Bar Association is among the advocates of it. Both houses of Congress ought to get cracking on it again.

The current drive for a constitutional convention is ostensibly to consider an amendment to require balanced federal budgets. The thrust is to pressure Congress toward such an amendment to forestall a convention. But no longer can state legislatures lightly vote for a convention on the assumption it will never come to pass. Alaska's vote last month brought the total to 31 out of the 34 states required for Congress to call a convention. With record federal deficits looming, three more states might be tempted to get aboard.

Then what? The Constitution's Article V says no more than that Congress shall call a convention for proposing amendments on application by two-thirds of the states - and that an amendment passed by the convention would require ratification by three-fourths of states to become law.

But what constitutes a valid application by a state? The present batch of applications are not all the same. At least some are believed open to legal challenge, postponing even the calling of a convention.

How would delegates be chosen? Some form of state election would be necessary to ensure democratic representation.

How would the convention's agenda be prescribed? What is to prevent the assembly from going beyond the convening states' original purpose and undermining the Constitution? Today's congressional onslaughts on judicial and executive jurisdictions hint at the sentiments that might be unleashed against the Constitution's checks and balances.

The Ervin legislation would have gone a long way toward answering such questions. It provided, for example, that proposed amendments be limited to the subject stated in the congressional resolution convening the convention.

But we're sure Sam would not expect a latter-day Congress to use the same Senate language of 1971 and 1973--so long as it offered viable alternatives. The point would be to prevent any constitutional crisis resulting from procedural uncertainties colliding with the stated will of two-thirds of the states.

An amendment to balance the budget is a poor vehicle to bring up the whole convention question. Any realistic measure would have to allow waivers for wartime or other untoward conditions. Congress already has the power, if it only has the conviction, to produce budgets as balanced as conditions allow.

But it is not beyond imagination that sometime the nation might have genuine reason for a constitutional convention as foreseen by the founders. The legislation should be ready.