The Convention of States (COS) would undermine the Constitution

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By: Stephen C. Eldridge

The COS is often marketed and sold with superficial, nice-sounding verbiage like “Wouldn’t you like the States to have the power to rein in the runaway federal government?” No person who believes in our Constitution’s core principle of very limited federal government would answer “No” to that question.

However, the principal purpose heard for a COS, Article V, “Con-Con”, etc, is to adopt a Balanced Budget Amendment (BBA) – how could any Conservative possibly be against balancing the budget? But, BBA is only superficially about balancing the budget – its principal purpose is to undermine our original Constitution’s extreme limitations on the powers of the federal government.

If a BBA is enacted, the original Constitution’s limitations on federal powers (Article I, Section 8 and the 10th Amendment) would become even less relevant than they have already become. Congress could point to the BBA and safely aver that their spending is Constitutional , as long as it is within the BBA’s dollar limitations  – whether that limit be an amount equal to tax revenues, plus all the money that Congress can borrow or print, or an amount equal to (say) 20% of Gross Domestic Product. ALL of these artificial limits are stated in terms of a dollar limit and completely ignore and override Article I, section 8’s limitations to specifically delegated federal powers.  The BBA thus creates a new, more Progressive Constitution in which the federal government may now spend money on (and thereby engage in) any activity it chooses.

COS proponents also try to assuage our fears that Congress would find a way to violate even those (new, more Progressive )spending limits.  They offer us the additional “assurance”, that Congress could not raise those (new, more Progressive) limits or raise taxes, without the prior approval of the States.  While that may sound comforting superficially, it does not comport with real life. Congress would extort the States into raising those (new, more Progressive) limits or into raising taxes by threatening to reduce federal  payments to the States, while leaving all federal mandates on the States in place (or threatening to  increase them).

The core problem is that Congress spends far more money than the original Constitution would permit, and even more than allowed by  later unconstitutional extensions of the Constitution (e.g., SCOTUS’ cowardly approval of Social Security under FDR’s threat to pack the court, and Obamacare), because it spends money on activities not permitted by the original Constitution. Voters need to press their members in Congress to squeeze the giant federal genie back into the little lamp. A BBA does not cure the problem, but would only make it far worse.  To paraphrase activist  Jeff Lewis , a BBA is the wrong solution to the wrong problem..

2 thoughts on “The Convention of States (COS) would undermine the Constitution

  1. Three points:

    1. The couple of BBA amendment proposals I’ve seen also allow violation of their own caps in an “emergency.” What could possibly be a greater emergency than having to close down the Gov’t cuz it has exceeded its spending cap before the fiscal year ends?

    In other words, the justification for violating the spending cap is destined to be: violation of the spending cap.

    2. I think we have a better rebuttal to the COS advocates’ claim that DC would have to answer to the states before violating the BBA — ie, that the Fed Gov would extort the states’ acquiescence by means of monetary threats against them. In practice, I doubt if would ever come to that because I can think of 2 better ways for the Fed Gov to skin that cat (other than declaring an emergency), and there may be still others::

    a) Of the umpteen million times the Fed Gov has violated the Constitutionally mandated restraints on its powers — to spend money or in any other area — how many times in the past century has it had to answer to the states for so doing? My best guess is: less than one. The Fed Gov won’t need to bother itself about the states. It’ll just do what it wants to do, business as usual. Some states will mumble something inarticulately, which no one will listen to.

    b) It will, in practice, be impossible to AVOID violating the cap — it is totally unenforceable, the product of a stupid mind. EG, suppose the BBA’s spending cap is 20% of GDP. Well, WE NEVER KNOW WHAT GDP IS GOING TO BE UNTIL AFTER THE FACT. All the Fed Gov has to do is estimate GDP as a huge number, and when the real numbers come in later, say “OOOOPS!! Excuse me, states. Mea NOT Culpa!! GDP came in so SHOCKINGLY low that our spending computes to 24% of it. Who’d a thunk it? What a terrible surprise!! Congress better pass a temporary resolution okaying it cuz we’ve already spent the money.”

    IE — You can’t spend “Percentages,” you can only spend dollars. A spending budget must be defined in terms of $-amounts. The BBA will compute that dollar amount by taking a % of another number, namely GDP. BUT THAT NUMBER IS NOT KNOWN UNTIL AFTER THE FACT, AND IS SUBJECT TO REVISION AS LONG AS YEARS LATER. And if we ESTIMATE GDP ahead of time – well, isn’t THAT fortunate. Just estimate GDP high, if you want to spend more.

    Even if we use the PREVIOUS year’s GDP, there are often revisions to it, sometimes even a few YEARS after the first “final” figure is in. Furthermore:

    Suppose the stupidos suggest we base it on last year’s “initial” number so subsequent revisions to it will not be allowed change the spending figure. Well, in a recession, when GDP goes down, the Gov will say “Gosh, folks, this is a RECESSION. How are we gonna pull out of it without Gov’t spending? The only way to get the GDP up and the economy humming is to spend more (not true, but it’s what even most conservatives believe). Based on last year’s RECESSIONARY LOW GDP, we have to CUT spending!! We can’t have that. It’ll destroy the economy!! We must, we simply MUST pull out the bag of tricks we used to use on the debt ceiling!!”

    And congress and the states will do SOMETHING, like pass a temporary resolution enabling the spending cap to be based on a PROJECTED or ESTIMATED figure for the COMING year’s GDP. Or some other gimmick. Bingo, Congress will be pulling new caps out of their hats faster than rabbits multiply. Gotta be flexible!!. Gotta deal with the realities!! So — we’ll find a way to goose up the GDP number used as a base for calculating spending, or pass a “temporary” relaxation of the 20% cap. Who cares if a law like that violates the Constitution? If anyone objects to our violating the Constitution in order to preserve the amendment created to STOP violations of the Constitution, we’ll show ‘em – we’ll just get another amendment passed saying it’s OK to violate the Constitution, but only Monday thru Friday & weekends.

    But what if we’re in a boom phase? Well you know darned well that there is always a need for SO many new projects, and for increased funding of existing projects, that the gov’t will say “We’re in a big boom guys. GDP’s risen for 4 years in a row. We can’t let this boom stop. Next year is BOUND to be yet another huge leap upward in GDP, and indeed the next 5 years oughta be great. It’s all due to this Admin’s wonderful economic policies and we are continuing them, so we’re gonna get more boom than you can poke a stick at. We can’t let the children suffer. We can’t let the hungry be deprived. We can’t fail to give the sick the care they’re entitled to get. We can’t stop being spendthrifts. OOOOPS, strike that last Freudian slip. What? You didn’t hear it? Well, thank you very much, gentlemen.”

    In other words, if last year was GOOD OR BAD — either way — there is a seductive false argument for INCREASING spending which those who currently hold the reins of go’v t can make, and which will be well received by the states and the people. They’ll find a way – WITH EASE.

    It’s amazing how many conservatives, demoralized by the prospects for our nation’s future, find it so easy to remedy that by moving into a dream world. They project their own views onto the population that elected Obama president, twice. Yes, once the BBA is an AMENDMENT, all the land will rise up as one when the gov’t violates it!! It will be so obvious, because so many people voted for it. I just saw a video of a fellow who asked 30 students – some of them in nursing and pre-med, to sign a petition to let SYMPTOMATIC ebola victims into the US so we could use our wonderful medical care to help them. Let them walk around, tour the scenery, go shopping and see what America is all about. Of the 30, 17 signed to 13 who didn’t. Of the 17, 11 agreed to let a SYMPTOMATIC ebola patient share living space in their homes. These were students in TEXAS, where the first ebola patient died, and where 2 nurses treating him contracted the disease despite HOSPITAL precautions. And conservatives think that with the passage of a BBA, ignorance and apathy will vanish overnight, and all Americans will become crusaders for the Constitution. No. YOU will know a violation o fhat amendment is wrong and a violation – just as you know Obama’s executive orders are unconstitutional, and just as you know many other gov’t activities are unconstitutional. But on they go, just blatantly repeated, with no one up in arms except a few activists on the right. When will Congress vote to impeach Obama? When will they vote to ban flights from W Africa? To enforce the security of our southern border? To abolish the FED? To defund the EPA? To put an end to NSA spying on us? When? Who? What is going to change in gov’t if the people don’t change? Why don’t we just push for an amendment that says “Congress and the Judiciary and the Admin must obey the Constitution?” Wouldn’t that be even better than a BBA which supposedly addresses only 1 of our many problems? Why not an amendment to disband the Democratic Party sinc ehtey’re the ones supposedly pushing all the over-spending?

    This particular rebuttal of the BBA is just one more support for the idea that there’s NO quick & easy fix for our problems until the states and the people grasp the importance of principles, and become educated to the inevitable disaster awaiting them should they violate those principles by succumbing to the short term’s alluring but deceptive promises.

    Remember, the BBA’s cap IS DEFINITELY going to get violated at times (most of the time?) anyway, either “accidentally on purpose” or because of an unexpected GDP figure. They’ll blame the overspending on the cold winter, or the Hurricane or a surprise GDP figure, or . . . you name it. But once we see 21% of GDP and do nothing about it, THAT will become the operating spending cap regardless of the BBA’s 20% figure, until we “accidentally on purpose” spend 22%, which will then replace the 21% operating, in-practice, cap, which will in turn ….. etc. The BBA just might slow the Fed down — for about 5 minutes. Then what’ll we do? Pass an amendment ordering the Fed Gov to observe the BBA amendment?

    3. Let’s face it: anyone who thinks inked words on paper are going to save our bacon has got to be the poster boy for naivetee, or just plain stupid. WE ALREADY HAVE A LAW THAT CAPS SPENDING. It’s called the Debr Ceiling. It’s even MORE restrictive in an absolute sense than a BBA (because it states a fixed dollar amount, not a fudge-able percentage of some juggle-able other number),. And . . . it’s a law that is REPEATEDLY broken whenever it “needs” to be. It’s a law that is a NON-law. As long as we don’t need it (cuz spending’s below it) there it stands, respected by all.. As soon as we need it, we,get mad at it for not being respectable anymore, for being an annoying obstacle to our profligacy., So we toss it aside, and replace it with a new, higher ceiling which we can then dutifully and diligently honor and respect again, until our unrestrained spending makes that one into an obstacle too. Just recall the disgusting performance we saw in late 2013, even from — ESPECIALLY from — the Republican guardians of the taxpayers’ wallets when the battle of the debt ceiling and budget was so valiantly fought by against the blue thieves by the . . . uh . . . er . . . the blue thieves. . (An overcooked noodle has more spine than the “conservative” Republican Party showed.)

    All a BBA does is calculate a spending cap for us by a loose and manipulable formula instead of letting the red thieves and the blue thieves each pick a number for the debt ceiling, and then pick on each other over their differences. The number they settle on will determine a cap on spending – until the law to curb reckless spending threatens to curb reckless spending again.. How is that going to make the leopards change their spots? Replacing the debt ceiling with a BBA is like saying “let’s measure the water’s depth at the OTHER end of the tub” – where you’ll get the same answer, but it’ll look as if you’ve made a heroic try for a different one..

    Congress ignores the Constitution, and in the case of the Debt Ceiling, it even ignores its own law. The Debt Ceiling law, per above, has become a laughing stock for being “amended” so frequently. Now we want to amend a dressed-up version of IT to the Constitution. The naive hope is that a profligate Congress unable to live by its own law which is subservient to the Constitution, will obey its intent if it is elevated to the status of Supreme Law of the land.

    The premise is that the impact of a book’s content is determined by its cover.

    Anyone who thinks he can take a few Bowery bums, put tuxedos on ’em, and give ’em tickets to the New Year’s Eve Ball at the Waldorf Astoria, with the idea it will elevate the bums, is naive and stupid. It will degrade the Ball. Anyone who thinks pouring a few ounces of cheap ginger ale into a bottle of the finest champagne will turn the ginger ale into champagne is a fool. It will dilute and degrade the champagne.

    Dressing up the Debt Ceiling law in the garb of the Supreme Law of our nation, does not change the nature of that law. It’s still a non-conceptual, non-principled, specific law of much lesser stature than the rest of the Constitution’s principled and uncompromising content. It is an attempt to make water into wine, and it won’t work because it can’t work. I don’t care what Mark Levin’s or anyone else’s resume says. Neither he nor they is equipped to work miracles.

    So what do we do?

    When you find that the Butler has been stealing your best whiskey no matter where you hide it,at some point you stop looking for a safer place to keep the whiskey. You need to fire the Butler and hire an honest one.

    The last thing we need is to take our debt ceiling law — with all its regularly accompanying vulgar displays of cheap political sleaze –, dress it up in new language, put a new label on it saying “BBA” and pour it into the magnificent vessel which is our Constitution.

    A BBA is NOT a “brilliant idea.” It’s a waste of time and effort, and more. It’s also a cheap trick, and a dishonest one. The problem is how to convince wishful thinkers that wishing is not what makes dreams come true.

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