Sometime this spring, according to those who keep track of such things, the 34th state legislature will formally petition Congress to call a constitutional convention to draft a budget-balancing amendment. What happens when (and if) that resolution reaches Capitol Hill? The answer is that no one knows. There are no precedents, no laws and few guiding principles. Congress -- and the nation -- would be off into the unknown.
The only guidance we have is Article V of the Constitution, which reads as follows:
The Congress, whenever twothirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress ....
There is nothing in that article about the scope of that convention, who is to be represented in it, how it is to proceed, or what is to happen to its product. Nor is there any indication in the Constitution of what happens if Congress simply refuses to issue the call.
Since two-thirds of the states have never asked for a convention on the same subject, there are no examples to follow. The Senate, under the prodding of former senator Sam J. Ervin Jr., did pass legislation a decade ago that attempted to fill some of the voids, but the House never considered it seriously. And the framers of the Constitution, although they must have had something quite specific in mind, left few traces in their commentaries on what a convention is to be.
It is easy, given so many unknowns, to dream up scenarios that throw the nation into a political crisis. What, for instance, if Congress refuses to call the convention? Those who have organized the drive for one say they would ask the Supreme Court to order Congress to do its duty. But the Court has never ordered Congress to do anything -- an old legal maxim holds that courts do not enter orders they cannot enforce. There is a strong possibility the justices would rule the matter is a "political question" beyond their jurisdiction. If they did that, then what? Congress would be in clear disobedience of the Constitution and the states would have a moral right to make it obey in any way they could.
While that scenario is unlikely, a more refined version has Congress refusing to call a convention because the resolutions requesting it are not identical. The possibility of a congressional refusal on that ground was seriously discussed in the 1960s during the drive for a convention to deal with the apportionment of state legislatures. The issue was not resolved then because that drive fell two states short. It hasn't been resolved since. If Congress did such a thing, no one knows how its action would fare legally or politically.
The most likely scenario, of course, is that Congress would heed the resolutions and either pass a budget-balancing amendment itself or call the convention. Any other course would repudiate too many of the basic principles of the nation. If it chose to call the convention, all the other unsettled questions would arise.
Chief among them is whether Congress can restrict a convention to one subject, in this case budgetbalancing. Most authorities think Congress could do that and then could ignore any action the convention took on other subjects. But it can (and no doubt would) be argued that Congress lacks that power. The argument for congressional power rests on inferences that can be drawn from the Constitution and from some of the things its authors wrote about their work. The argument against such limitations rests largely in political theory; a constitutional convention, after all, is the supreme authority of a free people.
The Constitution is also silent on who is to be represented at a convention. Should it be the states, with one vote each, as it was in 1787? Or the people as a whole with delegates allocated strictly on a population basis? Or, as Congress is, a mixture of state and popular representation? Should delegates be chosen by state legislatures or popularly elected? Presumably, Congress is the only body that can decide, since it is the body that must call the delegates together. Once they were assembled, however, they might claim the power to revise the voting pattern or any other rules that Congress had attempted to impose upon them, such as a two-thirds vote to approve amendments.
The ultimate scenario for political chaos is one in which a convention rebels against efforts by Congress to restrict its work. Suppose Congress said the convention was limited to budget-balancing, but the delegates also proposed amendments on abortion, prayer in the schools, segregation, apportionment or women's rights.
Those who say a convention can be limited assert Congress could simply refuse to submit those extraneous amendments to the states for ratification. That assumes the convention's work goes through Congress on its way to the states, an assumption based on the fact that Congress must decide whether state legislatures or state conventions are to do the ratifying. But the Constitution does not specifically route a convention's proposals through Congress. It merely says those proposals become effective when three-fourths of the states ratify them in the method proposed by Congress.
If a runaway convention -- asserting that it, not Congress, speaks for the people -- shipped its proposals directly to the states and told Congress merely to designate the mode of ratification, could (and should) Congress refuse to do so? Would the Supreme Court stay out of such a hassle, as it has always stayed out of arguments involving the validity of constitutional amendments? If it did, how would the impasse be resolved?
The answer to those questions, like the answers to almost all the others, is that no one knows. That's why the drive for a constitutional convention sends chills down the backs of most of those who have ever thought about the forces that could be unleashed. There are in that drive the seeds of conflicts that would make the other political crises since the Civil War look puny.