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Utah lawmakers call for a constitutional convention

Published December 27, 2010 2:51 pm
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Two Utah lawmakers are calling for a national convention to amend the U.S. Constitution, a move they say is needed to restore balance between the powers of state and federal governments.

The legislators are working with counterparts around the country and, while the odds are against them, if they succeed it would be the first such convention since the Founding Fathers met to write the document more than two centuries ago.

The separate but similar efforts are being put forward by Rep. Brad Daw, R-Orem, and outgoing House Speaker David Clark, R-Santa Clara.

Daw wants convention delegates to draft an amendment that would require the states to ratify any increase to the U.S. debt ceiling — which now stands at $14.3 trillion, but would likely have to again be raised early next year.

He said he hopes such a change would force restraint upon the federal government, much like Utah's balanced-budget requirement has limited the Legislature.

"By having a constitutional debt limit, it helps us rein in some desire to spend a lot of money and go into debt beyond what we can. I really believe that kind of check is needed at the federal level," Daw said.

Balanced-budget amendments have been proposed in Congress for decades, but never have gained the two-thirds support required before states had a chance to ratify it. Daw said his problem with those amendments is that they leave loopholes for Congress to avoid truly balancing spending and tax collections, but a debt ceiling would provide a tougher restriction.

"This seems like a nice balance between the states and the feds and it seems like a balanced-budget amendment that is much easier to enforce," he said.

Earl Fry, a political science professor at Brigham Young University, said that while such a proposal plays well to a conservative audience, the debt may have to get even worse before people are ready to take that sort of step. And there would have to be some flexibility in case of emergencies.

"[Daw is] into uncharted territory," said Fry. "I would like to see something like that, but you always have to have the provisos that if we get into war, if we get into a major economic recession, all bets would have to be off temporarily."

Meanwhile, Clark is pushing for a constitutional amendment that would allow states to repeal laws passed by Congress or rules enacted by the federal government. It would take the legislatures of two-thirds of the states to enact such a repeal.

"This is a tool that I think is important and will give some balance back to the equation," said Clark. "I just think it's absolutely critical, especially when we've seen what I think is an erosion of states' rights. I think the time has come for this to move forward."

Clark hashed out the idea in May with the speaker of Virginia's House of Representatives and other legislative leaders from at least 10 states have joined the effort. U.S. Rep. Rob Bishop, R-Utah, is proposing an identical amendment in Congress.

"It smacks very closely of what was known in the pre-Civil War days as nullification, which was a scheme a number of Southern states proposed as a way to protect their interests, particularly with respect to slavery," said Robert Keiter, a constitutional law professor at the University of Utah. "It was a theory of constitutional law that never really got any traction."

Keiter said one could argue states already can repeal federal laws by electing people to Congress who would change the law.

Under Article V of the Constitution, two-thirds of the states would have to call for a constitutional convention in order for the gathering to be convened. Any amendment proposed would need ratification by three-fourths of the states.

"There's never been a constitutional convention called in the history of the country, with the exception, obviously, of the one to replace the Articles of Confederation with the current Constitution," Keiter said. "With that history, I think the likelihood of a constitutional convention being called is very slim."

There have been calls for such a convention, he said, typically because of public anger over something Congress or the Supreme Court had done. After the Supreme Court's ruling in Brown v. Board of Education, ordering desegregation of public schools, Southern states sought such a gathering.

And a century ago there was an effort to amend the Constitution to require the direct election of senators, rather than having them appointed by the state legislatures. Congress responded by passing the 17th Amendment, accomplishing that goal, which Keiter said shows the pressure such efforts put on Congress can get results.

More recently, when Mike Leavitt was governor of Utah, he proposed a constitutional convention to craft states' rights amendments to the Constitution, but the effort fell apart amid concerns it would snowball into an avalanche of amendments.

Both Daw and Clark say their proposals are narrow, each seeking a single issue to avoid that convention creep. —

Two other proposals in works

P Resolutions are also being drafted for the upcoming Utah legislative session that would repeal the U.S. Constitution's 16th Amendment — which allows taxes on income — and to revise the 14th Amendment so children born to noncitizen parents would not automatically be U.S. citizens.




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