Constitutional conundrum: Michigan demand for a balanced budget could trigger amendment convention

By Stephen Dinan  -  The Washington Times  -  Monday, March 31, 2014

Michigan lawmakers last week voted to demand a balanced budget amendment to the U.S. Constitution, a move that could set into motion a never-tested, widely feared convention with the power to rewrite part of the founding document.

The lawmakers voted to ask Congress to call what is known as an Article V constitutional convention.

If Congress agrees with the count, Michigan is the 34th state to do so, creating the two-thirds majority required to force the historic gathering.

But plenty of questions remain unanswered: Is Michigan really is the 34th state? If so, will Congress respond, will the courts get involved in forcing a convention, and what happens once a convention begins?

“It’s a bunch of question marks,” said Gerard N. Magliocca, a law professor at Indiana University who has performed some of the key research on Article V conventions.

Among those questions is whether an application can be rescinded and how similar the states’ calls must be in order to be valid.

Article V of the Constitution is strikingly vague. It lets Congress propose amendments, but it also allows that “on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments.”

That second option has never been exercised. All 27 amendments to the Constitution have been proposed through approval by two-thirds of Congress, but Gregory Watson, a constitutional scholar, said Michigan’s application last week could test the other method under Article V.

Taking it back

By Mr. Watson’s count, Michigan is the 34th state to call for a convention on a balanced budget. The chief problem is that about a dozen legislatures have rescinded their states’ applications.

“There is disagreement among scholars as to whether a state that has approved an application may later rescind that application. If it is ultimately adjudicated that a state may not rescind a prior application, then Ohio’s 2013 application for a Balanced Budget Amendment convention would be the 33rd and Michigan’s 2014 application would be the 34th [out of the necessary 34] on that topic,” Mr. Watson wrote in an email.

Rob Natelson, who has studied similar conventions among the states or Colonies going back to the 17th century, said states always have been able to rescind calls for a convention.

That means, by his count, 18 states that have issued valid convention calls on a balanced budget amendment. He said Florida’s 2010 application could be considered the 19th, but the Legislature added specific language on federal limits to state spending that might not be similar enough for Congress to consider.

Ultimately, it’s up to a skeptical Congress to judge whether enough states have crossed the threshold, said Mr. Natelson, a retired law professor who is now senior fellow at the Independence Institute.

“Congress has to make that initial decision,” he said. “I think it’s unlikely that a request for Congress to call a convention at this point would get anywhere.”

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