Along with illegal immigration and budget battles, one of the more interesting issues before the 2011 Legislature, which meets in just over a month, will be states rights, and how to grab back some local powers supporters believe Congress and the federal government have taken away.
Two proposals have come forward already, with likely some more to come: The Madison Amendment and the Repeal Amendment.
Both, ultimately, would lead to state-called constitutional conventions – the rarely used method, allowed for in the U.S. Constitution, for state legislatures to call a convention to amend our most basic federal document when Congress itself refuses to act on a critical issue.
In Utah, House Speaker Dave Clark, R-Santa Clara, will carry a resolution in the general session that calls for such a convention. “It is narrowly written,” says Clark, who lost a close speakership race in November and won’t be presiding in the 2011 session.
Basically, the repeal amendment says that if two-thirds of the state legislatures agree, they can repeal any federal law, rule or regulation.
Calling a constitutional convention is a long row to hoe. It takes two-thirds of the legislatures to call such a convention. And that won’t be easy, since there has been, and remains, a belief that a constitutional convention is a last-ditch resource to be used.
But Clark, who has worked with the American Legislative Exchange Council and other states’ leaders, believes not only will the Utah Legislature adopt the standard Repeal Amendment convention call next year, but so also will 15 to 25 other states.
While not necessarily a partisan issue, conservative Republicans are leading out in taking on the federal government. And Clark points out that in the Nov. 2 GOP landslide vote across the nation, Republicans now hold control in both the state House and Senate in 37 legislatures.
We have 50 states, and so 33 states is two-thirds. Clearly, if GOP legislators across the nation can join together, there is the real possibility of success, says Clark.
Clark has decided to have a concurrent resolution in Utah, meaning if passed his measure would go to GOP Gov. Gary Herbert for his signature. But having governors agree is not required, and so in some states where there may be a Democratic governor, or a GOP governor who doesn’t like the idea, that state’s Legislature could act alone to pass the constitution call.
“Governors have the bully pulpit, and so it would be valuable” to have governors on board, said Clark.
The Madison Amendment, introduced by U.S. Rep. Rob Bishop, R-Utah, in Congress, acts a bit differently.
It says that if two-thirds of the states appeal to Congress for a specific constitutional convention, Congress “shall” call a constitutional convention just for that specific issue.
That is one way around the fear of a number of Americans that a constitutional convention could become a “runaway” convention. And newly proposed amendments not on the original call – perhaps taking away some freedoms Americans have long valued – could be considered and passed.
Of course, even if that happened, any proposed amendment to the Constitution still has to be approved by three-fourths of the state legislatures before it becomes effective. So there is always a local state backup even if there were a “runaway” constitutional convention.
“I don’t know if we can get two-thirds of the states to agree on anything,” said Clark of his proposed resolution coming before the 2011 Legislature.
And under the ALEC/state legislature route of just calling a constitutional convention without the Madison Amendment restrictions, Clark doesn’t believe there would be a “runaway” convention.
“We are drafting our resolution carefully,” he said. It says that only the repeal amendment’s language can be considered by the convention – although it is questionable whether convention delegates would be legally bound by that restriction.
In any case, it only makes sense that Utah would appoint delegates to the constitutional convention who would pledge to only consider the Repeal Amendment.
Clark says such an amendment, to be run through state legislatures next year, “is a rightful step back to what the Founding Fathers started out with” – the idea that all powers not specifically given to the federal government are reserved for the individual states and the people.
But, over time, the federal government has grabbed more and more power.
Clark said the Repeal Amendment, if in place, might never be used, since it will be hard to get two-thirds of the states to agree on repealing any federal law or rule.
“But it is their (congressmen’s) knowledge that we have” repeal power that may curtail some federal power grabbing, believes Clark.
And while President Barack Obama’s health care reform may have been one spark in the fire to gain more states’ rights, the two-thirds repeal power by the states is not aimed at any one federal issue, said Clark.
Others believe that the Repeal Amendment and its constitutional convention is the right way to go, since it is unlikely that Congress itself will pass an amendment, like the Madison Amendment, that would limit Congress’ amendment power.
Still, if it appears that the states are on the brink of passing the Repeal Amendment and calling a constitutional convention on their own, perhaps Congress will act with the Madison Amendment as a way to more clearly prevent the remote chance of a “runaway” convention.
In any case, says Clark, something must be done.
“We are starting a discussion,” said Clark. “A serious discussion” that, down the road, may well provide a way to curb the federal government’s power over the states.
That power-grabbing process started nearly 100 years ago with the 17th Amendment – where U.S. senators were no longer selected by their state legislatures, but by popular vote of the people. While that may have sounded good – more local control by voters, not politicians – it has resulted in Congress no longer being respectful of states’ rights, say Clark and others.
“I’m optimistic not only that the Repeal Amendment will pass in the Utah Legislature, but it will pass in many other states as well” in 2011, said Clark.
“And this federalism issue will just gain momentum from there.”
Here are the proposed amendments with links to their supporters’ websites:
Bishop and others propose Congress pass the following constitutional amendment:
"The Congress, on Application of the Legislatures of two thirds of the several States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V."
State legislatures across the nation will be asked to vote on a call for a constitutional convention to consider the following amendment to the U.S. Constitution:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."