Part I of at least three.
Synopsis: The following is a discussion on two of the most prominent topics being lobbied for in calls for a Convention of the States: a balanced budget and term limits for Congress and Supreme Court Justices.
There is a growing coalition of proponents calling for a Convention of the States. Sometimes known as an Article V Convention, a Convention of the States is the only method provided within the Constitution whereby the public, through the auspices of their state legislatures, may begin the process of potentially amending the Constitution. For an overview of the process see the US Constitution, Article V. Hence the name.
Though the process is little known, seldom attempted and as yet, unfruitful, the Constitution requires Congress to authorize a Convention of the States if two-thirds of the state legislatures request it. Any potential amendments that emerge from the convention are then subject to the same approval process as amendments presented by Congress requiring the ratification of three-quarters of the states to become an actual amendment to the Constitution.
This method of modifying the charter of the country was provided by the Framers, in the document itself, for what would appear to be the current situation that We the People find ourselves in: the federal government run amok; prolific, even ponderous regulations; bureaucratic cancer; continual erosion of Freedom and Liberty; the all-encompassing ineptitude of our current politicians.
There are two primary issues being targeted by the proponents of a Convention of the States: 1) Term limits for both houses of Congress and Supreme Court Justices [author’s note: our assessment is that these would most likely require separate amendments] and 2) a balanced budget requirement for the federal government. The reasoning, supported by the Constitution itself and the beliefs of those responsible for its origin, is that if Congress refuses to act on these measures, considered by many to be either necessary for the survival of the Republic, or in the best interest of the people—or both—then the States and the people have the right and the responsibility to attempt to neutralize congressional apathy and renegotiate how Congress acts on their behalf.
Are there valid reasons for pursuing this unusual course of action?
Term limits for Congress, in the opinion of the author, are redundant and thus, unnecessary. Congressional term limits are already present in the Constitution: 2 years for representatives in the House, and 6 years for those in the Senate. The only way anyone can serve more than 1 term is to win an election for another term. All other conditions and circumstances are inconsequential.
The permanent, parasitical, professional political class (caste, to be more accurate) we are currently burdened with has less to do with certain individuals’ desire for power than it does with voter apathy and personality cults. If you want your representatives and your senators to serve only 1 or 2 terms, than you are free to exercise the power or your own imposed term limits and vote for someone else. Convince enough of the people you know or influence to vote the same, and voila, someone new will be in office.
Term limits imposed on members of Congress also generate an unintended consequence. They limit choice and the freedom for people to make their own (admittedly sometimes stupid) decisions. A hard-enforced term limit has the potential to thrust an untrusted, disliked, compromised or otherwise unworthy individual into political power because the alternative has been unceremoniously relegated to former and ineligible status.
In the case of term limits for Supreme Court Justices (no pun intended), again, there is already a mechanism in place for removing a member of the High Court: impeachment. We often think that impeachment is reserved only for the President and Vice President, but this is not true. Referencing the charter document itself:
The President, Vice President and all Civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.
— U.S. Constitution, Article II, section 4
The House of Representatives already has the power to begin proceedings to have any official of the federal government removed from office. The Senate already has the power to remove such official with a two-thirds majority vote after receiving the evidence provided by the House. Is the process swift? No. Guaranteed? No. Easy? Not especially. We are not convinced that any of these perceived shortcomings detract from the validity of this solution; a solution already provided and one that can be used when it is necessary.
The fact that a Supreme Court Justice has never been removed through this process (although several have been impeached) is not the fault of the process and does not readily indicate the need for a rush to change it “because it doesn’t work”. Rather, we submit that it does work as it was intended to work—a slow, deliberative process that portends great import for the present and denotes implications far beyond the current moment.
The double-edged sword analogy is at play here also. Suppose Justice Scalia, or/and Chief Justice Roberts were mandated to step down between 2009 and 2015 due to to term limits. Would you really want the current president to nominate a new justice or two? Somewhere there is a voice shouting “be careful what you wish for.”
Author’s Note: This article was penned in January, 2016, a full month before the unexpected passing of Justice Antonin Scalia.
Yet to come on this topic:
– A balanced budget amendment
– The Convention Convened