The idea of convening a constitutional convention to propose a balanced budget amendment or similar amendments raises grave problems, as we explain in a new paper. A number of states have passed resolutions calling for such a convention, and proponents of a constitutional convention are targeting more states in an effort to obtain the 34 states needed to call one (see map).
A balanced budget amendment poses serious risks in and of itself. But, as a number of legal experts across the political spectrum have warned, a convention could open up the Constitution to broader radical and harmful changes. Such serious concerns are justified, for several reasons:
- A convention could write its own rules. No constitutional convention has been called since the 1787 meeting that wrote the Constitution, and the Constitution provides no guidance whatsoever on what a convention’s ground rules would be. This leaves wide open to political considerations and pressures such fundamental questions as how delegates would be chosen, how many delegates each state would have, and whether a supermajority vote would be required to approve amendments. To show the importance of these issues, consider that if every state had one vote in a convention and the convention could approve amendments with a simple majority vote, the 26 least populous states, with less than 18 percent of the nation’s people, could approve constitutional amendments for ratification.
- A convention could set its own agenda, possibly influenced by powerful interest groups. The 1787 meeting went far beyond its mandate. Charged with amending the Articles of Confederation to promote trade among the states, the convention instead wrote an entirely new governing document. A convention held today could set its own agenda, too. There is no guarantee that a convention could be limited to a given set of issues, such as balancing the budget.
- A convention could choose a new ratification process. The 1787 convention ignored the ratification process under which it was established and created a new process, reducing the number of states needed to approve the new Constitution and removing Congress from the approval process. The country then ignored the pre-existing ratification procedures and adopted the Constitution under the new ratification procedures that the convention proposed. Given these facts, it would be unwise to assume that ratification of the convention’s proposals would require the subsequent approval of 38 states, as the Constitution specifies. For example, a convention might remove the states from the approval process and propose a national referendum instead, or approval by a simple majority of states.
- No other body, including the courts, has clear authority over a convention. The Constitution provides for no authority above a constitutional convention, so it isn’t clear that the courts, Congress, state legislatures, or a President could intervene if a convention went beyond the language of the state resolutions calling for a convention or the congressional resolution establishing it. Likewise, there may be no recourse if the convention altered the process for ratifying its own proposed amendments. The Constitution has virtually no restrictions on the operations of a constitutional convention or the scope of the amendments that it could produce, and the courts would likely regard legal challenges to a convention as “political questions” that the judiciary does not wade into.
States should avoid these risks and reject resolutions calling for a constitutional convention, and those that have already approved such resolutions should rescind them.