Many conservatives and conservative groups, such as the Goldwater Institute, are calling for a Constitutional Convention for the specific purpose of passing a balanced budget amendment to the Constitution to force the federal government to reign in its ruinous spending. Strangely enough, “progressive” groups funded by George Soros are also calling for such a convention.
But maybe that’s not so strange. Constitutional conventions, even if convened for a specific purpose really have no safeguard for confining themselves to that purpose. Some conservatives fear that such a convention could get out of hand and fundamentally change our Constitution.
There is a precedent for these fears: The Convention of 1787 was called “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government [the Articles of Confederation] adequate to the exigencies of the Union.” But the Convention of 1787 exceeded this purpose by throwing out the Articles of Confederation altogether and writing an entirely new Constitution.
This issue is examined in detail in an article by law professor Joe Wolverton entitled “Nullification vs. Constitutional Convention: How to Save Our Republic.”
His thesis is simple: instead of amending the Constitution, enforce it.
Wolverton begins by citing some examples of federal actions for which there is no Constitutional authority:
“President Obama has issued over two dozen executive orders preventing Americans from accessing the right that protects all others: the right of citizens to keep and bear arms.
“Federal spending and debt are ballooning — a consequence of the federal government interjecting itself into myriad areas where it has no constitutional authority. For example, there is not a single syllable in the Constitution providing for foreign aid ($74 billion spent from 2010-2011), undeclared wars in Afghanistan and Iraq (nearly $4 trillion spent since 2001), or the 185 federal welfare programs (nearly $2 trillion spent from 2010-2011). In the past decade, based on just those three examples alone, Congress has authorized the spending of over $6 trillion for unconstitutional purposes.”
Wolverton then discusses the Constitutional Convention approach during which he notes:
“What is known is that calling a constitutional convention would be very risky. It would, in fact, be gambling with the Constitution. This is true not only because of the nature of conventions — which may go off in unpredictable directions when called — but also because not everyone who supports a constitutional convention supports the same goals.”
He also asks, “…considering the penchant of all three branches of the federal government — congressional, executive, and judicial — for routinely disregarding existing constitutional restraints on their power, why should we expect that they would suddenly faithfully obey an amended Constitution?”
Wolverton proposes, instead, states follow the “nullification” option.
“…nullification is based not on altering the Constitution but on enforcing it. States that nullify congressional acts or presidential decrees that violate the Constitution would not only be stopping the federal juggernaut at their state borders, they would also be signaling that the Constitution is so vitally important that it must be enforced.”
Nullification is based on the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nullification is founded on the fact that the sovereign states formed the union, and as creators of the contract, they retain ultimate authority to enforce the constitutional limits of the power of the federal government.
“There are several benefits for applying this understanding via nullification: It is a far safer approach for remedying problems caused by violating the Constitution than a constitutional convention; it is based on upholding the Constitution and the founding principles of the Republic; and it can be implemented by individual states, without having to first get two-thirds of the states on board.”
“Despite the benefits, there are those who insist that nullification is unconstitutional. They argue that the so-called Supremacy Clause of Article VI of the Constitution puts federal laws above state laws and that the Supreme Court has the final say on the constitutionality of federal laws. Both of these claims can be easily dismissed.”
“Regarding the first claim, the Supremacy Clause does not declare that all laws passed by the federal government are the supreme law of the land, period. A closer reading reveals that it declares the ‘laws of the United States made in pursuance’ of the Constitution are the supreme law of the land.”
“In pursuance thereof, not in violation thereof. None of the provisions of Obama-Care, for example, is permissible under any enumerated power given to Congress in the Constitution. They were not passed in pursuance of the Constitution, therefore they are not the supreme law of the land, and they may be declared null and void by the states.”
Wolverton goes on to provide more justification for nullification and concludes:
“Nullifying unconstitutional federal laws is very achievable, if constitutionalists were to inform themselves of this approach and then pursue it. Because the understanding is better in some states than it is in the nation as a whole, it is very possible for states to win victories via nullification to stop unconstitutional federal laws that could not now realistically be repealed on the national level. Although only a relatively small number of states have so far nullified unconstitutional federal laws in the areas of gun control, ObamaCare, NSA surveillance, indefinite detention of civilians, etc., a string of state nullification victories would not only create a bandwagon effect encouraging other states to join the nullification movement, but also contribute to the overall national awakening — shortening the time it otherwise would take to create a constitutionalist U.S. Congress….But enacting a string of nullification bills in states across the nation — particularly bills possessing teeth that will be enforced by state officials — will not happen without creating the necessary understanding and activism to get state legislators on board. And improving Congress to the point where most congressmen begin abiding by their oaths of office…”
As far as a balance budget amendment is concerned, be careful what you wish for. There are only two ways to balance the budget: reduce spending or increase taxes. Guess which one Congress would choose.
Nullification has been applied more narrowly in the area of jury rights in distinguishing between the law and justice. If, as a prospective jury member, you ever cite one of the following quotations to the judge, you will probably be dismissed from jury duty, as I was once:
“The jury has a right to judge both the law as well as the fact in controversy.” – John Jay, 1st Chief Justice, U.S. Supreme Court, 1789.
“The jury has the right to determine both the law and the facts.” – Samuel Chase, U.S. Supreme Court Justice, 1796.
“The law itself is on trial quite as much as the cause which is to be decided.” – Harlan F. Stone, 12th Chief Justice, U.S. Supreme Court, 1941.