Charles Michaelis’ Testimony On Ohio SJR 5 Applying To Congress For A Constitutional Convention

Chuck Michaelis, Institute For Principled Policy Vice-chairman, presented testimony before the Ohio House Policy and Government Oversight Committee on Tuesday November 19, 2013. The hearing was on Senate Joint Resolution (SJR) 5, a resolution applying to Congress for a new constitutional convention purportedly for a balanced budget amendment to the United States Constitution. Mr. Michaelis spoke in opposition to the resolution.

Opponents were given no opportunity to testify on this resolution in its assigned Ohio Senate committee.


Thank you, Chairman Dovilla and to the House Policy and Government Oversight Committee members for the opportunity to testify today on Senate Joint Resolution (SJR) 5.

Chairman Dovilla, my name is Chuck Michaelis and I am Vice-chairman of the Institute For Principled Policy. We are an Ohio-based public policy think tank.

I come before you today to speak in opposition to SJR 5. The goals of SJR 5 are noble if, probably futile. As we have or will hear today the problem with the deficit is far worse than even the sponsors of this Balanced Budget Amendment seem to realize.

Based on the scope of that problem I question the wisdom of calling a convention as a means to pass a constitutional amendment which will have no effect on deficit spending. Why do I say this? In 1992 an amendment which was part of the original 12 amendments to the Constitution was finally ratified by the requisite ¾ of the states to become the 27th Amendment to the Constitution. That amendment prohibits a pay raise for Senators and Representatives until such time as there has been an election for their seat. In other words, they can’t vote themselves a pay raise whenever they want one. So are federal representatives prevented from getting pay raises during their terms as the amendment requires? No. Thanks to the efforts of our public servants, many of them purporting to be fiscal conservatives, the prohibitions of the amendment have been bypassed by a “compensation commission” created by Congress for that purpose. The amendment has been rendered impotent.

And that is what I believe will happen with the Balanced Budget Amendment, meaning that all the toil, strife, and disharmony necessary to call a constitutional convention, even on the extremely remote chance that the proponents manage to get one called and are somehow able to control it, will turn out to be a colossal waste of time and effort. The so-called “emergency clause” of the amendment (a freight train-sized loophole) will be invoked and the pork barrels will roll unobstructed through Congress just as quickly as the 27th amendment was bypassed.

But my real focus is on the major procedural issues associated with a convention call. This body has been told not to worry. It has been told that those who believe that there is any danger in the states not being in control of a convention or that there even is any such thing as a “constitutional convention” in the Constitution are “delusional.” This comes from a line of argumentation that makes the wild claim that “everyone knew” that the Philadelphia convention was being called to re-write the Articles of Confederation.

When I testified on HJR 7 I handed you all a booklet which contained the unedited text of the state resolutions and commentary. The booklet demonstrated that not only did everyone not know about the plan to re-write the Articles but that some were expressly forbidden to do what was done at Philadelphia. The states had called a limited convention and attempted to control it with strongly worded resolutions regarding what could and could not be done. The different state delegations also had strongly divergent views regarding what the “defects of the union” were. And yet, this “controlled and limited” body of delegates threw out the Articles of Confederation they were empowered only to amend and wrote the Constitution, a fundamental change in the governmental structure of the nation. This means that those who propose that a convention can be “called, limited, and controlled” by the states through “strongly worded” resolutions have no constitutional historical precedent to back their claims.

And because of this fact we can state unequivocally that those who argue for a “controlled and limited” convention, no matter if it’s called a “convention of states” or an “amendments convention” or even “Uncle Sam’s Tattoo Contest And Constitution Hoedown” is, in fact a plenipotentiary constitutional convention if it is called by 2/3 of the states in application to Congress to alter the Constitution.

There is a second line of argumentation which is far less certain in its outlook on the controllability of a federally called convention. This line argues that a controlled and limited convention could probably be called (maybe) but that the controlling body would be the federal courts. This is based on the claim that federal jurisprudence has grown since 1789 and must certainly have a final arbiter’s role in determining the agenda and limits of any convention. This position can also cite exactly no precedents in constitutional history to back their claims. It also does not invoke warm and fuzzy thoughts and feelings regarding the safety of the procedure.

As my colleague at the Institute for Principled Policy Barry Sheets testified on HJR 7, there is a third line of argumentation involving a government body who has weighed in and claims control over the agenda and delegates to any convention- Congress through their Congressional Research Service. This claim is based on the flaw in Article V which allows states to call conventions through Congress but is silent on who appoints delegates, how they’re appointed, by what criteria they are appointed, how the convention will be assembled or structured, etc. There’s no reason for this state body to believe they’ll be in charge of the appointment of delegates under this scenario. This position can also cite exactly no precedents in constitutional history to back their claims. What they can cite is a deeply flawed Article V which should but does not structure that authority.

There is yet another line of argumentation. This is our position. We believe we can prove, based on precedents in constitutional history, that a convention, properly called, is plenipotentiary and fully capable of abolishing, amending, or completely restructuring the form of government. We base this on the 4 conventions in Anglo-American history, all of which were plenipotentiary and all of which fundamentally altered the structure and function of the national government. It is simply undeniable that a convention is always the highest law-making body in any political entity.

A court applies law that is made by a legislature. This makes the idea that a court controlling the delegates, the agenda, or the limits of a convention something of an absurdity. Courts interpret and apply written law. Legislatures make the law that courts apply. Control of a convention by a legislature is also not possible. Legislatures write law within the limits on power and authority as created by a constitution, either written or unwritten. All political organizations and, in fact, all organizations in general have a constitution whether or not it is written. It is the rule set under which they operate. And the only body which can create those rules in a political entity is a convention.

Under the model we propose to show is the correct one delegates are controlled only by their own consciences, the rules of the convention, and their perceived fiduciary responsibility. And that’s a problem because this state body assumes that the delegates will feel a fiduciary responsibility to them. The real fiduciary responsibility of delegates is to the body-politic, or every member of society within the political boundaries of the entity appointing them.

Obviously, this makes the ability to select delegates of paramount importance to the direction of the convention. The legislators have been told that it is a near absolute certainty that they will be in charge of delegate selection. Based on what? The precedent of the Philadelphia convention? There is a major flaw in this thinking. In 1787 the states were mostly autonomous. The Articles of Confederation had no official convention procedure written into it. The ONLY bodies which could appoint delegations were the state governments. In 2013 the picture is much different. The Constitution has a convention procedure. State sovereignty has all but eroded to nothing and the convention procedure’s silence combined with this erosion of sovereignty means that the Federal government sees itself as the primary controlling entity on any Article V convention. They understand that allowing states to select delegates might just mean losing a significant amount of the power that they have concentrated in Washington since 1789. And that means they will do whatever is necessary to prevent that.

If the Congress or the federal courts are allowed to set criteria or qualifications for delegates or reserves slots for special interest groups, you can probably kiss the idea of a Balanced Budget Amendment with anything like teeth goodbye.

As you can see there are many questions that must to be answered and many important concerns to be worked through before a Constitutional Convention can safely be petitioned for. I’m not sure that I’m convinced that a proper amount of contemplation of these questions and their broader consequences has been considered when I observe the speed which is being employed to push this measure through the legislative process.

Chairman Dovilla, I want to thank you and the members of the committee for your patience and indulgence in hearing my testimony. I would be more than happy to answer any questions you might have of me.