On Wednesday Dec. 10, 2008 a hearing was held in the Ohio House Judiciary Committee. We will be printing some of the testimony which was presented in that hearing.

The following testimony is that of Chuck Michaelis who is Executive Director of Camp American and Vice-chairman of the Institute for Principled Policy.

Thank you, Chairman Blessing and to the House Judiciary Committee members for the opportunity to testify today on House Joint Resolution (HJR) 8.

Chairman Blessing, 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 HJR 8. The goals of HJR 8 are noble. In this age of financial instability, rapidly rising deficits and concern about when the effects of turning on the government printing presses to bail out mortgage lenders and large manufacturers will be felt in the form of inflation, it is imperative that government be required to do what I have to do at home- live within my means.

To that end, a properly constructed balanced budget amendment to the US Constitution could very well be the answer to the financial instability our nation is currently experiencing. And while I applaud the effort I must call the committee’s attention to the fact that the calling for a Constitutional Convention for that express purpose would be, in all likelihood the first step towards an unmitigated disaster.

Historically, HJR 8 looks a lot like the documents issued by the Continental Congress in February 1787 and the documents issued from the legislatures of several states appointing delegates to the Constitutional Convention of 1787. Congress passed a resolution, based on the findings of the Annapolis Convention, a meeting of the delegations of 5 states-Virginia, Delaware, Pennsylvania, New Jersey and New York- to discuss defects in the Articles of Confederation, which called a convention of all 13 states, “…for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union. (emphasis added)” The Articles had an absolute requirement that any amendments to them had to be accepted unanimously. Note that Rhode Island sent no delegates to the Con Con of 1787.

Several states that did send delegates to the Con Con were worried about what a runaway convention could do to the Articles of Confederation and the sovereignty of their states. The documents they used to appoint delegates stringently required the delegates to discuss amendments to the Articles only and, especially in the case of Delaware, forbade them to discuss the elimination of the Articles and their replacement with a new constitution. Other states that restricted their delegations from participating in elimination of the Articles included Connecticut, New York and Massachusetts.

And yet, after the first official act of the Con Con of 1787 was to agree to work in complete secret, the convention agreed to violate the instructions given by both the Continental Congress and their state legislatures. That’s the moment that the convention became a runaway. And how could it not have become one? Most Con Con historians admit that a number of delegates had the elimination of the Articles as their main objective all along. Among them Madison, Hamilton, Washington and Franklin.

When men of genius like this are appointed to an office that can only be described as super-legislative, operating in secret, ignoring legislative restrictions, responsible in reality to no one but himself can anyone be surprised when they do everything in their power to accomplish what they set out to do in the first place?

Former Chief Justice Warren Burger was asked what he thought of some of the Con Con movements of the mid- 1980’s. he said-

“I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose. (emphasis added)”

Burger would be in a position to know the history, being both a Chief Justice of the Supreme Court and head of a federal committee to celebrate the bicentennial of the ratification of the US constitution in 1989 due to his scholarship on the subject.

In light of Chief Justice Burger’s opinion, I would like to ask this committee to contemplate a number of questions before deciding to become one of the several states which have active Con Con resolutions.

In the event that 34 states ask for a Con Con and Congress is then forced to call an Article V Constitutional Convention what will Ohio do if Congress uses its authority to appoint all of the delegates? Article V contains no requirement that the states be represented in a Con Con.

If the states are allowed to choose their own delegates then who will choose them? The Governor? The House, The Senate? A bi-cameral panel? A blue-ribbon commission? A plebescite? If by plebescite then who picks the potential candidates? Who can vote? All eligible electors? Taxpayers only? Or would we possibly, in the interest of “enfranchisement”, allow all citizens and potentially foreign nationals the franchise for this special election?

What would the requirements be for a candidate for delegate? Exclusively lawyers? A mix of professionals? So-called “proportional representation” of all special interest groups? Will people of strong religious conviction be excluded? What will the exact criteria for eligibility be?

What will the deliberative body look like ideologically? Will there be representation for anarchists? Libertarians? Marxists? Constitutional Conservatives? How will you know how the body is constituted? How can that possibly be controlled or should it be?

Frankly, as a constituent of this body, I think I should have some knowledge about how my representatives have planned to control these variables when there is a very real possibility that a runaway Constitutional Convention will vote to discard the Constitution of 1789 in favor of “something new.”

Can this body convince me that the bill of rights will remain intact in the event of a runaway Con Con? In light of earlier Con Con history, can you guarantee that there will still be states existing as sovereign bodies after a Con Con? Had Alexander Hamilton gotten his way in 1787 there would be no separate states. Will a potential new constitution recognize my rights as being an inalienable gift of God which government is charged to protect by Him? Or will it treat them as a gift of government to be taken away and returned on the whim of whoever holds power?

As you can see there are many questions that must to be answered and many important concerns to be worked through before a Con Con 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 Blessing, 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.