Chuck Michaelis, Institute For Principled Policy Vice-chairman, presented testimony before the Ohio House Policy and Government Oversight Committee on Tuesday October 29,2013. The hearing was on House Joint Resolution (HJR) 7, 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.
Thank you, Chairman Buchy and to the House Policy and Government Oversight Committee members for the opportunity to testify today on House Joint Resolution (HJR) 7.
Chairman Buchy, 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.
There have been 4 conventions in Anglo-American constitutional history. In every case the convention resulted in a fundamental change in the governmental structure of the nation in which it was called. Therefore, I come before you today to speak in opposition to HJR 7. The goals of HJR 7 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.
But I question the necessity of calling a convention as a means to pass a constitutional amendment which will have no effect on deficit spending due to the “in case of emergency” clause, a gaping loophole. But more importantly is the danger of calling a convention which has the power to drastically alter our form of government for such a questionable expedient.
Historically, HJR 7 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 Constitutional Convention of 1787.
Several states that did send delegates to the Constitutional Convention were worried about what a 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 Constitutional Convention 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. Many say that this is the moment that the convention became a runaway. But the term “runaway” is a category error for a body which has been legally appointed to make changes to the governing document of a political entity. You see, a convention called in the proposed manner for the purpose of changing the governing documents is a higher law making body than the legislatures calling it. That is a logical necessity. A convention is always the highest lawmaking body of any political entity. The convention makes the law which the lower law-making bodies are bound by oath to obey. This means that a convention, once called and seated, has the authority to do nothing, amend the existing structure of government or even, as we saw in the Philadelphia convention, to dissolve the old structure (the Philadelphia Convention’s second official act), form a new one and set an entirely different procedure for ratification than the old structure specified.
This also means that legislative attempts to limit convention delegates regarding subjects to be discussed or limiting amendment options in enabling documents are only effective if the delegates feel a fiduciary responsibility to the legislature. If they feel a fiduciary responsibility to a special interest group or to the body-politic they will exercise that responsibility accordingly. Thus, the Rhode Island legislature sent no delegates to the Philadelphia convention because “… we conceived that as a Legislative Body, we could not appoint Delegates, to do that which only the People at large are intitled to do; by a Law of our State the Delegates in Congress are chosen by the Suffrages of all the Freemen therein and are appointed to represent them in Congress; and for the Legislative body to have appointed Delegates to represent them in Convention, when they cannot appoint Delegates in Congress, … must be absurd; as that Delegation in Convention is for the express purpose of altering a Constitution, which the people at large are only capable of appointing the Members… As the Freemen at large here have the Power of electing Delegates to represent them in Congress, we could not consistantly appoint Delegates in a Convention, which might be the means of dissolving the Congress of the Union and having a Congress without a Confederation.”
Rhode Island got it. A convention had the power to dissolve the existing union. Where they went wrong was in believing that they could stop both the amending of the Articles of Confederation and a new constitution, citing Article XIII which unequivocally stated “And the Articles of Confederation shall be inviolably observed by every State and the Union shall be perpetual; nor shall any alteration at any time be made in any of them unless such alteration be agreed to in a Congress of the United States and be afterwards confirmed by the Legislatures of every State.” By not participating they believed the other 12 states could do nothing. What they failed to conclude from their own argument and what modern advocates for convention ignore is that a convention has the power to create a new ratification procedure. This renders the argument that Article V’s ratification procedure is an ironclad protection against wholesale changes to the Constitution moot. What if a convention prescribes a procedure like an online plebiscite? It may seem ridiculous but Rhode Island found the idea of the ratification of the new Constitution by ¾ of the states in convention equally ridiculous. They did not come into the union for nearly 3 years after the new Constitution was submitted to them.
Former Chief Justice Warren Burger was asked what he thought of some of the Constitutional Convention movements of the mid- 1980’s. he confirmed the Rhode Island legislature’s concerns-
“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. Burger is far from alone. His has been the view of scholars like Blackstone, St. George Tucker, John Randolph Tucker, and many others.
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 Constitutional Convention resolutions. In the event that 34 states ask for a Constitutional Convention 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 Constitutional Convention. Article V was a last minute addition to the text of the Constitution. It was not a completely developed idea and was only lightly debated. Thus, it has several flaws. The lack of clarity regarding who can appoint delegates and the criteria that will be used to call them is only one of these. You have already heard testimony today that constitutional scholars believe the power to control delegate selection is a federal responsibility. Thus, a fiduciary responsibility to the Ohio body-politic is a pivotal question you must answer.
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 plebiscite? If by plebiscite, 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? Will the Ohio Constitutional Modernization panel be the model? What if Congress requires reserved spaces for special interests?
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 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 radical Constitutional Convention? In light of earlier Constitutional Convention history, can you guarantee that there will still be states existing as sovereign bodies after a Constitutional Convention? 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 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 Buchy, 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.