n159  0450  30 Apr 85
BC-ARMOR-2Takes-(Balt.)
     By John C. Armor
    c. 1985 The Baltimore Evening Sun
    
     The idea seems somehow to have been established that the
Constitution of the United States is in grave danger from the states'
calls for a Constitutional convention on the Balanced Budget
Amendment. We hear the same fears expressed in articles published
around the country, and in testimony given in the various States,
opposing the BBA.
     It is not the state action, but the thinking displayed in these
arguments which endangers the Constitution.
     I have testified repeatedly in five states and before two
Congressional hearings on this subject. The Constitution and its
history are being abused and misrepresented by those who want to
achieve a narrow political result. Who says so? The best impartial
source is the American Bar Association, which adopted as official
policy in 1974, the concept that a constitutional convention held
under Article V could be limited to a stated and particular subject.
     Why did the ABA House of Delegates, the elected representatives of
500,000 lawyers, take this position? Because they reviewed the
history of the writing of Article V, and they reviewed the history of
more than 200 state constitutional conventions held since then.
(Although there has been only one national convention, the issue is
identical when a state calls for a limited convention, and the
delegates try to jump the traces and propose amendments on forbidden
subjects.)
     Last Friday, the Minnesota House of Representatives defeated a
conditional convention call by a margin of four votes. In Michigan,
it passed the Senate and will go to a House vote in a week. In Ohio,
it has passed the Senate and is before the House. The issue is live
in the Connecticut legislature, and may be live in others. So, the
possibility of two more states joing the 32 that have acted to date,
is very real. But, if that happens, what does it mean?
     All of these oh-my-God articles and testimony claim that the second
half of Article V, the part that allows 23rds of the states to call
for a new convention, has never been used. That is false.
     In the original Constitution, the Senate of the United States was
appointed by the state legislatures, rather than elected by the
people. Beginning in 1983, the House of Representatives passed five
times a proposed amendment to make the Senate democratically elected.
Five times the idea died in committee in the Senate.
     In the meantime, the states began passing conditional calls for a
new Constitutional convention. That means that they asked Congress to
pass the amendment, but said that if Congress did not act, then they
wanted a new convention to write the amendment. By 1912, 31 of the
required 32 States ahd acted (there were only 46 states, then). The
Senate saw the handwriting on the wall, and passed the 17th
Amendment. It was ratified a year later.
     Those who oppose the Balanced Budget Amendment totally ignore the
history of the 17th Amendment. They ignore it because it demonstrates
that their arguments won't hold water. The states are doing today
with respect to the BBA, exactly what they did 75 years ago
concerning the 17th Amendment. They are forcing Congress to act.
     This is a demonstration of what I call The Swamp Water Theory - 
Congress will swallow anything if you give it only two choices, and
the other one is worse. The text of the Constitution contains the
proof of this theory.
     The last clause of the 17th Amendment protects ''the election or
terms of any senator chosen before it becomes valid. . . .'' That is
a classic grandfather clause. If a new convention had written the
17th Amendment, it could have put all the non-elected senators out in
the street, and elected 100 new ones.
    
     MORE
    
    
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n160  0456  30 Apr 85
BC-ARMOR-1stadd-(Balt.)
    
     pickup xxx elected 100 new ones
    
     In short, the Senate in 1912, chose the lesser evil, but only after
the states, by using conditional convention calls, had given it no
choice. Exactly the same thing is going on today. A convention could,
for instance, write an amendment that would cut off the salaries of
all congressmen and their staffs if they failed to pass a balanced
budget. The Congress would never dream of doing that to itself.
     A second false claim that these articles make is that the original
convention in Philadelphia was a ''run-away'' and that therefore a
new one, today, would be the same. Among other points the authors say
that the original convention changed the ratification procedures,
since unanimous consent was required under the Articles of
Confederation.
     If they had done their homework, they would have discovered that
there were only 11 states in the Union when George Washington took
office. North Carolina and Rhode Island did not join until they
ratified, respectively in November, 1789, and May, 1790. Then, it was
unanimous, and the Articles expired.
     Not only has the convention-call method of obtaining an amendment
been used before, it worked exactly the way the Framers designed it,
200 years ago. In describing the state-call method, they said in the
Federalist, Number 85, ''it has been urged that . . . the national
government will always be disinclined to yield up any portion of
(their) authority.'' Of course they would. Taking power away from a
politician is like taking steak away from a lion. That is exactly why
the Framers gave us an alternative route, to get around Congress when
it was part of the problem.
     Those who say we shouldn't use this part of the Constitution, are
saying we must wait until Congress corrects the problem on its own,
even if it takes another fifty years and the nation goes bankrupt in
the meantime. There were those who said the same of King George III.
They were called Tories. Their side lost the American Revolution.
     The modern Tories say we must wait for King Congress the
Ninety-Ninth to come to its fiscal senses. The Constitution and our
history say otherwise. The second half of Article V is a legitimate,
effective, proven, and democratic method of getting results that the
people want despite the reluctance of Congress.
    
     John C. Armor is a Constitional lawyer and an Adjunct Professor of
Political Science at the University of Baltimore.
    
     End Armor
    
    
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