Amending the US Constitution: South Dakota's Inconvenient History, part 1

Dear Reader:

As we start another legislative session in Pierre, there are sure to be proposals to have the Legislature apply to Congress to call a Convention to propose amendments to the US Constitution. We will be assured by proponents of this idea that there is nothing to be concerned about. What could possibly go wrong? The states will be in charge, they say. Unfortunately, history does not seem to be on the side of proponents. Here is one of a number of examples, which I ask you to consider with an open mind: 

In, 1911, the South Dakota Legislature considered ratification of the what today is known as the 16th or "Income Tax" Amendment to the US Constitution. 

The State House consisted of 105 members, of which 98 were Republican, 5 Democratic, 1 Populist, and 1 Non-Partisan. 

The State Senate had 45 members, 32 of which were Republican, 11 Democratic, 1 Populist and 1 Non-Partisan. The Senate was first to considered ratification on January 17th. All members present (41 of them) voted "yea."

The House took up ratification on February 1st. All 100 members present voted "yea."

The proposal was extremely popular at the time. However, it is quite common today for people to lament the addition of the "Income Tax" amendment to the US Constitution, especially those who consider themselves conservative or affiliate with the Republican party.

In 1911, the number of states was pretty evenly split on party control of legislatures. But, of the states that were controlled by Republicans at the time ratification was considered, only three states (Utah, Connecticut, and Rhode Island) refused to ratify.

Lesson 1: Three-fourths of the state legislatures CAN be persuaded to ratify amendments which cause more problems than they claim to solve. The argument that the 3/4's threshold is an "ultimate safeguard" against bad amendments does not stand up to the historical record.

Lesson 2: "Bipartisanship" back in 1911 gave us the 16th Amendment.

Today, the most commonly proposed amendment for such a convention is a "Balance Budget Amendment." In light of what we know, let's consider what type of a "Balanced Budget Amendment" (BBA) might be added to the US Constitution through "bipartisanship" should one ever be proposed and ratified through a Convention under Article V of the US Constitution. Let's be honest.

• Would such a BBA be one which threatens the terribly expensive unending wars and foreign intervention favored by the Establishment Republicans? 
• How about a BBA which threatens the massive welfare state which has put federal spending on auto-pilot since the 1930's? Would 3/4 of the states ratify that? 
• How about a BBA which significantly reduces the amount state governments receive from the federal government? 

You may disagree, but I'd say probability of success on the above three questions falls in the "very unlikely" category.

Alright, one more question: 

• Considering the answers to the above three questions, what is the probability that a BBA would amount to a massive tax increase in the name of "balancing" the Federal budget?

But, just for argument's sake let's assume state legislators have wised up and won't be fooled this time around. Congress receives the 34th application and calls a Convention to propose amendments. Well, the legislators who went to Indianapolis this past Summer for the "Assembly of State Legislators" meeting in support of such a Convention will be in for a big surprise. Now the actual Amendments Convention will reflect the party makeup of all the states, rather than being a pep rally for mostly conservative activist legislators. So, the partisan makeup of the room changes dramatically from the first seating chart you see to the second. 

What type of "Balanced Budget Amendment" is likely to be proposed by such a Constitutional Convention, Article V Convention, or whatever name you call it? Also, what other items might be on the table? Would it be unreasonable to think that the Democrats in such a body, holding 48% of the seats would not try to push their amendment to overturn the "Citizens United" Supreme Court ruling on Corporate spending in political campaigns? You know, the proposal that says...

“An entity, including any organization or association of one or more persons, established or allowed by the laws of any State, the United States, or any Foreign State shall have no rights under this Constitution…”
“The privileges of any entity…shall not be construed to be inherent or inalienable.”

Ever considered the fact that a great many of the activities you do could easily be construed as being done as part of an artificial legal entity? If the entity has no rights, effectively you have no rights, either. 

Now, remember, this proposed amendment is extremely popular among Democrats and the Left. (We even had a certain candidate for US Senate from South Dakota who was pushing such an amendment.) Can you think of any reason why the Left  would not not try to push for its proposal and ratification as part of a compromise if an Article V Convention were to occur? Let's also be honest: have conservatives or liberals gotten the short end of the stick lately  bipartisan compromise achieved?

So, when someone tells you that the 3/4 ratification is the ultimate safeguard in an "Article V Convention," or that they shouldn't worry because 27 or so state legislatures are controlled by Republicans, or because the South Dakota delegation would never ratify any bad amendment, ask them if they every wondered how the 16th Amendment came to be. You might show them a few of these pictures, too.

Have you ever wondered why proponents of an Article V Convention almost never mention this easily verifiable history? Would it make a difference if you did know this before someone approached you about the idea of a modern Convention?

Yours in Liberty,

Eldon