With Republicans in control of two-thirds of state legislatures and governorships, more and more states are calling for a national convention under Article V of the Constitution to discuss and propose various constitutional amendments, most of which would reduce the power of the federal government.
Such a convention is understandably opposed by liberals and their interest groups. However, many ultra-conservatives are also frightened by the prospect of an Article V convention. Are their fears justified?
I don’t understand why conservatives would voluntarily surrender an important tool (about the only one left) that the nation’s founders gave states so they could be equal players in our system to the federal government.
Opposing an Article V convention is not only dumb, it’s dangerous — eliminating an important check on the federal government and reducing state freedom.
First, some background: When the Founders drafted the U.S. Constitution, they clearly did not want the federal government to grow so large and powerful that it totally dominated the states. They wanted the states to be equal partners. They wanted the Congress and the president to be respectful and responsive to the states. The Federalist Papers make that very clear.
So the Constitution and the Bill of Rights provided three important tools and powers to prevent states from being dominated by the federal government.
First, the Tenth Amendment states that powers not specifically delegated to the federal government were reserved to the states or the people. James Madison, the father of the Constitution, said the power of the federal government are “few and defined.” The power of state governments is “numerous and indefinite.” Unfortunately, that sentiment has been so eroded away by congressional and presidential acts and federal court decisions that it is essentially ignored. Congressional acts and presidential decrees make almost no attempt to differentiate between federal and states roles. The Tenth Amendment no longer protects states.
The second thing the founders did to protect states was require U.S. senators to be elected by state legislatures. Senators would obviously be careful not to trample on state prerogatives or allow too much power to be centralized in Washington, D.C. if they were beholden to state legislators.
Unfortunately, some states performed this duty poorly, with infighting, corruption and sometimes long vacancies. Thus, many states and citizens asked Congress to put the 17th Amendment on the ballot, which resulted in the direct election of U.S. senators.
That action will never be reversed, so the states lost an important tool in their effort to be relevant in the federal system.
The third tool the founders gave states was the ability to propose constitutional amendments through a constitutional convention. In the spirit of the states being co-equal, they gave states the same power to propose amendments as they gave Congress. They assumed that if the federal government grew too powerful and arrogant, the states could propose constitutional amendments to rein it in.
This tool is admittedly difficult to use. The founders did not clearly define a convention process, and it has never been used by the states. But it remains an important tool. To give it up would be to surrender to federal domination.
A constitutional amendment is a very serious thing, and a rigorous and difficult process should be required before an amendment becomes part of the nation’s foundational document. The U.S. Congress essentially sits as a constitutional convention every day. If a proposal can get two-thirds votes in both bodies, it is submitted to states for ratification. Three-fourths of state legislatures must then vote for an amendment before it becomes part of the Constitution. Many congressmen have ideas for amendments. Very few win enough votes in Congress. And far fewer still are ratified by the states. It is a highly rigorous process.
An amendment proposed through an Article V convention also faces extremely high hurdles. Two-thirds of states must propose a convention for an amendment. Any amendment winning support at the convention must then be sent to the states where three-fourths would need to ratify, as in a congressionally proposed amendment. The hurdles are high enough that only very serious and much-needed amendments would make it through.
I don’t understand why some conservatives trust a dysfunctional and gridlocked Congress to propose constitutional amendments but do not trust states to do the same.
Clearly, states need tools to push back against the federal government, to replace the tools they have lost. Maximum freedom is achieved in what Madison called a “compound republic” – with power carefully divided between two levels – national and state – and then split again among three branches of government at both levels. “Hence, a double security arises to the rights of the people,” said Madison.
Various amendments have been proposed by state leaders to be addressed in an Article V convention. My preferred amendments are structural in nature. They don’t change anything immediately, and they don’t seek to definitively sort out the complex and interrelated roles of the federal and state governments.
Instead, they create structural tools so the states can simply push back a bit — so that, over time, a better balance in the federal system is restored.
For example, a very important amendment would be to simply amend the Article V amendment process to simplify it and treat the states like the federal government. So instead of requiring a convention, the amendment would simply allow three-fourths of states, by resolution, to approve an amendment. That would give the states a simple process like Congress enjoys. It would obviously be very difficult for three-fourths of states to agree on an amendment. But having that power would keep Congress worrying that if it becomes too dictatorial, the states could push back.
Another simple but effective amendment would allow two-thirds of states to overturn a federal regulation or law. That would force Congress to take into account state wishes as they pass legislation.
With Republicans controlling the U.S. Senate, the House, the presidency, and large majorities of governorships and state legislatures, the time is right to enact measures restoring a proper balance in the federal system. But if conservatives are fearful of an Article V convention, they come to the fight with one hand tied behind their backs.
It may be unlikely that an Article V convention will ever be convened. But as states get close to the needed two-thirds support (34 states), it’s likely the Congress would take notice and propose the amendment in Congress before states force a convention.