Did Michigan trigger a constitutional convention?

We often hear talk about pressing for a constitutional convention as a means to address issues that Congress keeps avoiding, especially on debt and spending levels as well as intrusion on states’ rights. States have that option, as long as two-thirds agree on a demand for such a meeting — which hasn’t taken place since the US Constitution was put forward more than 220 years ago. Did a recent call from Michigan for action on balancing the budget hit the two-thirds mark? Fox News thinks it might:

Momentum is building behind what would be an unprecedented effort to amend the U.S. Constitution, through a little-known provision that gives states rather than Congress the power to initiate changes.

At issue is what’s known as a “constitutional convention,” a scenario tucked into Article V of the U.S. Constitution. At its core, Article V provides two ways for amendments to be proposed. The first – which has been used for all 27 amendment to date – requires two-thirds of both the House and Senate to approve a resolution, before sending it to the states for ratification. The Founding Fathers, though, devised an alternative way which says if two-thirds of state legislatures demand a meeting, Congress “shall call a convention for proposing amendments.”

The idea has gained popularity among constitutional scholars in recent years — but got a big boost last week when Michigan lawmakers endorsed it.

Michigan matters, because by some counts it was the 34th state to do so. That makes two-thirds.

The action took place last week, which by the count of WHTC made Michigan the 23rd state to call for the convention — far short of the two-thirds mark.  Stephen Dinan unpacks whether Michigan is 23rd or 34th, or somewhere in between:

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 The chief problem is that about a dozen legislatures have rescinded their states’ applications.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.

A similar issue came up during the debate over the Equal Rights Amendment, which stalled and died in the 1980s. Some states voted to ratify the amendment but then changed their collective minds, and voted to rescind their ratification. The Supreme Court ruled that the rescissions were valid in Idaho v Freeman in 1982, and the ERA ended up dying on the vine partly as a result. The first arbiter of this question will be Congress itself, but any legal action challenging the validity of the count at 34 would likely refer back to the 1982 decision. It’s more likely that the count is 23 rather than 34, in practical terms.

Should we encourage the move to a Constitutional convention? Mark Levin is the most prominent advocate for it, and his reasoning is solid. The option exists as a check on federal power so that it allows states to rein in an acquisitive Congress or executive. After ObamaCare and the borrowing sprees of the last several years in particular, it’s all but impossible to argue that those conditions don’t exist at the moment.

However, the counter-argument to the convention proposal is that, in Forrest Gump‘s famous analogy, it’s like a box of chocolates — you never know what you’re gonna get. It might end up rewriting the entire Constitution, and conservatives might not like the end results. That argument has its limitations, too, as any proposed amendments or rewrites would still require ratification by three-fourths of the states — 38 in total, more than the threshold for the convention itself. Anything too radical in either direction would run into buzzsaws at the state legislature level, which means the only amendments likely to pass muster would be those that specifically enhanced federalism and put a rein on federal spending. It’s more likely that nothing would come of it, rather than anything revolutionary.

Still, it’s an interesting debate, if still a bit academic at the moment. We’ll see what Congress thinks of the count, and see whether it ends up going through the judiciary.

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David Strom 3:21 PM on March 24, 2023