Everyone likes to talk about the Constitution, but apparently not very many people are reading it. During the debt ceiling crisis, there was vigorous discussion of a balanced budget amendment to force the federal government to live within its means. At the same time, reporters, politicians, and pundits reminded the country how difficult it is to get two-thirds of each house of Congress to propose an amendment and three-quarters of state legislatures to ratify it.
It's as if Article V of the Constitution is password protected. Almost no one seems to know that it provides an alternative method for offering amendments and approving them.
All 27 amendments have been proposed by Congress. But the framers worried that the federal government might become too powerful and resist reform, so they created a second way to change the Constitution.
If two-thirds of the states (34) petition Congress, a constitutional convention must be called to propose amendments. Any that emerge from such a convention must then be forwarded to the states for ratification.
Throughout our history, more than 400 petitions have been submitted by the states, but only a few times have enough done so to get close to the requisite two-thirds. In 1983, it was discovered that 32 states — two short of the number needed — had approved petitions for a balanced budget amendment.
Once an amendment is proposed — either by Congress or a convention — a key decision must be made. Article V gives Congress the power to decide whether the amendment will be ratified by state legislatures or state conventions.
It has chosen conventions only once, for the 21st Amendment in 1933 to repeal prohibition. Congress worried that state legislators from rural and dry districts would keep the ban on alcohol.
This nation has had one federal convention, in 1787. If we have another — to consider a balanced budget amendment — it would be fascinating and scary. Unlike the first one in Philadelphia, this convention would be open to the public and media and would generate gavel-to-gavel coverage and endless posts on the Internet and every social network.
Unfortunately, the framers provided no guidance on how such a convention would be conducted. State legislatures likely have the power to choose the delegates, but the public would demand that they be elected. TV commercials and Internet solicitations would abound as delegate candidates raise money and fight for attention.
This would not be a "runaway" convention that repeals the Bill of Rights and other provisions of the Constitution. Congress considered a bill in 1979 to limit a convention to the subjects identified in the petitions and would likely pass such legislation as the number approached two-thirds. Even if a convention went astray, states would not support radical amendments.
Assume that after a national convention approves a balanced budget amendment, Congress chooses state conventions for ratification. Article V is silent on who picks those delegates For the repeal-of-prohibition amendment, all states had elections and most established slates of candidates who were pledged for or against the proposal.
Interestingly, it took less than 10 months for the 21st Amendment to be ratified, the second-shortest time in the nation's history. Of the 43 states that held conventions, 39 completed action within four months of the time the amendment was approved by Congress.
Using conventions seems like a drawn-out process fraught with potential problems, but it may be the best way to consider a balanced budget amendment. Such an amendment would be of transcendent importance and have to be written carefully to consider various contingencies. If the usual method is used — Congress proposes and state legislatures ratify — the people would not be directly involved or consulted.
But if delegates are elected to a national convention and then later, to the state conventions considering ratification, we will be part of the process. The Internet and other communication technologies would provide an unprecedented opportunity for us to discuss and decide whether our Constitution should be altered in such a fundamental way. It is hard to imagine a proposed amendment that is more deserving of such deliberation.