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  • Writer's pictureJeff Utsch

An Easy Choice: Burger vs. Reagan on Article V

Legislators 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

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