An Easy Choice: Burger vs. Reagan on Article V

reaganLegislators in Arizona, Alaska, Arkansas and Georgia are walking in President Ronald Reagan’s shoes by sponsoring the Compact for a Balanced Budget Amendment. At a time when the national debt was a fraction of what it is today, on May 23, 1994, Reagan wrote: “We can’t depend on Congress to discipline itself . . . we must rely on the states to force Congress to act on our amendment. Fortunately, our Nation’s Founders gave us the means to amend the Constitution through action of state legislatures . . . That is the only strategy that will work.”

And yet, there are constitutionalists who would rather rely on Chief Justice Warren Burger in opposing Reagan’s dream of a state-originated Balanced Budget Amendment. Pointing to a 40-year-old single page letter, in which Burger simply declared an Article V convention cannot be controlled, these constitutionalists warn of dire consequences from following Reagan’s advice.

But whenever a constitutionalist quotes Burger favorably about a constitutional issue, that constitutionalist hasn’t done his homework. Burger was no friend of the Constitution. He was appointed by Nixon to reverse the Warren Court. He didn’t. He preserved and expanded it instead. It is no wonder Burger got the Article V convention process wrong, too.

Just ask George Washington. In a letter to John Armstrong dated April 25, 1788, Washington wrote: the “constitutional door is open for such amendments as shall be thought necessary by nine States” using the Article V convention process. Nine states represented the two-thirds threshold needed to apply to Congress for an Article V convention. Washington clearly believed that two-thirds of the states could target an Article V convention to “such amendments as shall be thought necessary.”

Want more proof than the words of the Chairman of the Philadelphia Convention? Then ask James Madison.

In Federalist No. 43, Madison wrote Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Think Federalist No. 43 was just pillow talk aimed at securing ratification? Not so. Madison was consistent in his belief the states could target the Article V convention process. For example, in his February 7, 1799 Report on the Virginia Resolutions, Madison emphasized just how laser-focused the Article V convention could be. Specifically, Madison wrote that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, and also that the states “might, by an application to Congress, have obtained a Convention for the same object.” Close to his deathbed, in August 1830, Madison wrote, “Should the provisions of the Constitution as here reviewed, be found not to secure the government and rights of the states, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution, according to a process applicable by the states.”

In short, constitutionalists must choose between the interpretation of Article V favored by Warren Court protégé Warren Burger and that of Ronald Reagan, which echoes the understanding of George Washington and James Madison.

That’s an easy choice for a constitutionalist, who does his homework.

Then-Governor Reagan explained why in a radio address on February 13, 1979. Lauding Milton Friedman’s effort to originate a Balanced Budget Amendment using the Article V convention process, Reagan observed “voices have been raised warning of danger that a . . . convention would open the door to all manner of proposed amendments. In my view, those who warn of this show little faith in our democratic procedures. The Constitution provides for both methods and the convention is a safety valve giving the people a chance to act if Congress refuses to.”

It is time to support the Compact for a Balanced Budget for the same reasons President Ronald Reagan supported Nobel Laureate Milton Friedman’s effort — only the states will originate a powerful balanced budget amendment. Left to its own devices, Congress will never tie its own hands.

It’s that simple.

Jeff Utsch
Director, States United for a Balanced Budget

Chip DeMoss
President/CEO, Compact for America, Inc.

Nick Dranias
Constitutional Policy Director, Goldwater Institute

3 Comments on "An Easy Choice: Burger vs. Reagan on Article V"

  1. AMEN!

  2. How about repealing the 17th amendment while you’re at it. That would take care of
    term limits and also we’d get a 2fer. Got get ’em. You’re our only hope.

  3. Scott Amorian | January 25, 2014 at 1:39 pm |

    I love that Reagan quote: “We can’t depend on Congress to discipline itself . . . we must rely on the states to force Congress to act on our amendment. Fortunately, our Nation’s Founders gave us the means to amend the Constitution through action of state legislatures . . . That is the only strategy that will work.”

    Reagan got the general idea correct, but missed the political reality. The US government was intended to be a federation of states, with power resting in the states, with power safely distributed among the states, protecting the people from well known abuses that occur when political power is held by a centralized group (an oligarchy). Upon the implementation of the Constitution we immediately became a partisan oligarchy with the states as party districts. The parties run the government. In a way, the parties are the government because they control it. It can truly be said “The [parties] are not the solution to the problem, the [parties] are the problem.” And the nine most frightening words in the english language are “I’m from the [parties] and I’m here to help.”

    The parties run the government at the federal, state and local levels. This is where the advocates of the Convention of States fall short. They recognize that the government is not behaving rationally at the federal level, so they try to get it to behave rationally by appealing to the parties at the state level. In other words, they want the partisan oligarchy to behave rationally at the state level, because the partisan oligarchy will not act rationally at the federal level. Do you see the problem here?

    The first Convention of States will either be an act of the partisan oligarchy using the Convention of States to give themselves more power, or it will be an act of rational citizens using the Convention to destroy the partisan oligarchy and implement a true federal system with a neutral and fully empowered justice system that actively enforces the limits and obligations of the Constitution on the federal government. (Or it will be another cultural CF like prohibition.)

    This stuff about using the Convention to implement legislation, which is exactly what all the Balance Budget proposals are, is bogus. Nothing good will come of it. If you dig only a little deeply into who is behind the drives for most amendments, you will always find the parties. If confronted, they will try to pawn themselves off as nonpartisan, but they are always partisans at heart.

    As for the opinion of a single Supreme Court Justice, who cares? The partisan oligarchy appoints and approves those Justices. Therefore the Court is biased in favor of the parties. Justices who do not support the abuses of the parties do not appointed. They get “borked” by Congress or they do not get selected by the President. That is why the Court has no authority in saying whether the Convention is legal and appropriate or not. The Court is biased in favor of abusiveness by the executive and legislature. The only true measure of propriety of the proceedings of the Convention is the act of approval of a proposed amendment by a three-fourths majority of the states.

    The states have the right to implement specific amendments, since that was the whole purpose in giving the states the ability to amend the Constitution. The Framers wanted the states to be able to implement specific necessary or desired amendments when Congress would not. Despite the fear mongering of the naysayers, the Convention can be controlled and kept from running out of control through any number of technical mechanisms. The most important device is a pre-convention of truly neutral persons (non-partisan and not party appointees) to define what needs to change and the process to follow when creating the amendment.

    When you see people organizing to replace the party system with a federal system and to strengthen the enforcement of the Constitution and to improve the separation of powers, then you may know that true reform is about to occur. A political party with these deep governmental reforms as their platform is probably the way to go, but I’m not seeing this party popping up anywhere. The existing partys are still too in control of the hearts and minds of the public.

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