Reining in a `runaway' Constitutional Convention
LAST fall, just before Congress adjourned for the November elections, Ruth McNamee, a Michigan Republican with 10 years' experience in the state House of Representatives, broke a legislative logjam by helping to defeat a resolution that called for a Constitutional Convention to balance the federal budget. Her vote had national implications and reflected a larger concern than whether or not the Congress should be required by the Constitution to adopt a balanced budget. In fact, like many of us, Mrs. McNamee favors a balanced-budget amendment. What she did not favor was a ``runaway'' Constitutional Convention. Neither do I. We are on the verge of a unique constitutional crisis. Thirty-two of the necessary 34 states have petitioned for a Constitutional Convention designed to propose a balanced-budget amendment. Congress last week began a new legislative year. During January so will many of the legislatures in the remaining 18 uncommitted states. Since at least two of those states have already demonstrated enormous public sentiment in favor of such a convention, it is possible that we will be faced with a Constitutional Convention sooner than we expect. Before that happens, Congress must act responsibly to legislate practical procedures for its conduct.
When the Constitution was drafted in 1787, its authors, led by James Madison, recognized the need to create a dual amendment process. Article V is devoted to that purpose, and it outlines both a congressional and a popular route for achieving constitutional change. The process of amendment that has been effectively utilized 26 times in our history calls for the Congress to propose, and for three-fourths of the states to ratify, amendments to the Constitution. The other, which has never been tested, allows ``a convention for proposing Amendments'' to be called by the Congress upon the request of two-thirds of the states, or 34 today. Because of Supreme Court decisions interpreting the congressional method, we have a good sense of what is involved, procedurally, in processing a proposal through Congress and then to the states. But we are completely in the dark about what might happen if a convention were ever triggered.
Some scholars argue that Congress could decline to call a convention even if the requisite number of states demanded it. Others, such as William W. Van Alstyne, a Duke University law professor, suggest that Congress is under a ``constitutional obligation'' to call a convention if the requirements of Article V are met. What seems clear to me is the need to limit any such convention to the subject matter of the state resolutions, and thereby avoid a ``runaway'' convention in which an entirely new Constitution might result.
In 1971, the United States Senate, acting upon the recommendation of Sen. Sam Ervin, then a North Carolina senator, adopted a convention-procedures bill by a unanimous 84-to-0 vote, but the House of Representatives did nothing. The issue then died at the conclusion of the 92nd Congress. In 1973, the Senate passed a similar bill a second time, but once again the House failed to act.
In 1974, after two years of study, a Special Constitutional Convention Study Committee of the American Bar Association (ABA) added its voice to the chorus urging Congress to adopt prodecures that would guide the work of a convention. ``If we fail now to deal with the uncertainties of the convention method,'' the report warned, ``we could be courting a constitutional crisis of grave proportions. We would be running the enormous risk that procedures for a national Constitution Convention would have to be forged in a time of divisive controversy and confusion when there would be a high premium on obstructive and result-oriented tactics.''
In the summer of 1982, the New York State Bar Association issued a call for a Constitutional Convention Procedures Bill, and on Jan. 23, 1983, yet another bill was introduced and acted upon in the Senate. This version, introduced by Sen. Orrin Hatch, was unanimously reported by the Senate Judiciary Committee last May 17 -- too late in the session to expect any meaningful response from the House.
Throughout a decade of debate, the House has consistently sat on its hands. In 1977, I introduced a Convention Procedures Bill in the House, and in every Congress since, my colleagues and I have pushed for hearings in the House Judiciary Committee so that we could study the problem more fully. To date, however, none have been forthcoming. Instead, we have been told that setting up the machinery might well encourage the use of the convention method for constitutional amendments. If this view ever had validity, it has vanished in the face of 32 state resolutions. In fact, it is a position that was rejected by the Special Committee of the ABA in favor of action in advance of a crisis. ``Fidelity to democratic principles,'' the report concluded, ``requires no less.''
What experience we have in operating a Constitutional Convention occurred in Philadelphia in 1787, and it is at least arguable that that convention, since it was formed for the purpose of revising the Articles of Confederation, went well beyond its mandate in proposing a new document. We are fortunate the product has served us well. If, on the eve of the Constitution's 200th anniversary in 1987, we are confronted with another such convention, will we be prepared? If we are not, posterity will hold accountable those who have thus far refused to act.
Henry J. Hyde is a Republican congressman from Illinois.