By Taryn O’Neill Via Legal Insurrection-
Last week, Louisiana passed a resolution calling for a Convention of States as described in Article V of the U.S. Constitution. The resolution passed on May 25 with a vote of 62-36, making Louisiana the eighth state to call for a meeting of the states for the purpose of proposing constitutional amendments addressing abuses by the U.S. Federal Government. Other states that have called a Convention of States for the same purposes are Florida, Georgia, Alaska, Alabama, Tennessee, Indiana, and Oklahoma.
Increased national interest in a Convention of States (COS) is due largely to the government’s failure to operate as the Framers envisioned. Having accrued a national debt of over $19 trillion and a debt-to-GDP ratio of 105%, the government’s size and scope has grown far beyond anything the Founders could have imagined. Meanwhile, the states, having created the Federal Government, find themselves acting at the mercy of Washington’s limitless regulations and outstretched tentacles, lest they lose federal sacred funding.
At present, the lines of power separating what the Framers originally intended to be three co-equal branches of government have become faint and are often ignored. Presidents, both current and past, have entrusted lawmaking authority to unelected employees of an ever-growing executive branch. President Obama has threatened on more than one occasion to take the law into his own hands if Congress refused to draft the legislation he desired. The senate’s willingness to forfeit its constitutionally enumerated authorization of the Iran Nuclear Proliferation Treaty in favor of a review process that didn’t even apply to the nuclear treaty itself.
Whether or not the general public is aware of the erosion of the separation of powers doctrine, many Americans do sense something is structurally wrong with today’s federal government; some are even desperate enough to look to a self-proclaimed Socialist for answers. Congressional job approval ratings have declined steadily the past 15 years and presently hover around 13%. Election after election, politicians are voted into office with promises of sticking to principles and shaking up Washington, only to abandon their promises in favor of going along to get along. Come reelection time, however, Americans can rest assured their congressman or woman will surface after a term of relative obscurity to put up a good, newsworthy “fight” for his or her constituents.
At a hearing last month, former Senator Tom Coburn (R-OK) described the problem the nation faces and explained why many Americans have begun looking beyond Washington and the next election for a solution:
Article V begins as follows (italics added):
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereofas the one or the other mode of ratification may be proposed by the Congress;
In short, there are two ways to go about amending the Constitution, the first of which involves the writing and approval of an amendment by two-thirds of Congress. It is then sent to the state legislatures, three-fourths of which must approve the amendment in order for it to become law. The Constitution has been amended using this method 27 times.
The second method, discussed by Sen. Coburn, requires two-thirds (34 of 50) of state legislatures submit applications calling for a convention for the purpose of proposing amendments. Like the first method, amendments proposed at this Convention of the States (COS) must then be sent back to the states for approval by either three-fourths of state legislatures or by three-fourths of their respective conventions. The method of proposing constitutional amendments by way of a COS has been attempted in the past, but without success.
Why a Convention of States option was included in the Constitution
During the drafting and ratification processes of the Constitution, Founders took special care to assure those that worried the federal government might become too powerful. In Federalist 45, James Madison addressed the anti-Federalist concern that states would become powerless under the proposed Constitution. Madison, however, assured that states would retain many of their powers, save a few enumerated ones:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Familiar with the human tendency to inch towards corruption and consolidate power, the Framers foresaw a time when the government would become too powerful and would no longer represent the will of the people and that of the states that authorized its power. Because of this, they included in Article V two ways of imposing structural changes to the Federal Government. The option for the states to be involved in the proposition process of an amendment rather than solely in an amendment’s ratification was suggested by Virginia delegate George Mason just two days before the close of the 1787 Philadelphia convention:
“Col. Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”
As the record shows, Mason was concerned that Article V, in its preliminary form, allowed for only Congress to propose amendments. He worried that a congress, should it become abusive, would never propose amendments curtailing its own abuse. A portion of that preliminary version is as follows:
“Article 5: The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose, amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;”
Reservations about the process
Whether congress or the states propose an amendment, it’s important to note that neither of these actions calls for the type of convention that produced the U.S. Constitution in Philadelphia. This convention, having taken place over 3 months in Philadelphia, is sometimes referred to as a “constitutional” or “open” convention. Although a COS is certainly constitutional and falls well within the states’ constitutional rights, it should not be confused with a convention for the purpose of writing a constitution. The 1787 convention, on the other hand, was explicitly called for by several of the states during a convention in Annapolis one year prior. All states attending the Philadelphia convention in 1787, therefore, were aware of the issues to be discussed prior to their attendance.
Unlike the Philadelphia convention, a COS is a meeting of the 50 states scheduled in order to address a predetermined issue or subject matter. As constitutional scholar and professor Robert Natelson explained, America’s history of holding conventions is rarely discussed, but in fact was firmly documented. At least 30 interstate and intercontinental conventions in America’s history, the earliest having occurred in 1689 and the most recent in 1922. Whether a convention was called by all states to address a national concern or by a few states to solve a shared, regional problem, the records of prior conventions provide for us a documented history of the rules and procedures for states to follow.
Because the constitution requires that all 34 of states’ applications for a COS be of the same subject matter(s), a COS will not be called until 34 states seek to convene over the same subject. Once this occurs, Congress is constitutionally required to (i.e. “Congress … shall”) schedule a COS whether or not Congress agrees with the meeting’s purpose.
At a time when the Constitution seems often ignored or perverted by the Obama administration, Supreme Court justices, and others, skeptics of the COS process question how another constitutional amendment would fix the problem. Mark Meckler, founder and president of Citizens for Self Governance and active promoter of COS, told Legal Insurrection the problem lies less in a failure to adhere to the Constitution and more in Washington’s refusal to take into consideration the Framers’ original intent:
“Generally speaking (with some notable exceptions) the federal government actually does follow the Constitution. Unfortunately, it follows it as interpreted by the Supreme Court, not according to original intent. For example, the Commerce Clause was intended to give the federal government very narrow authority. It has been dramatically broadened by SCOTUS over the last 100 years. So the goal is to push back against these broad interpretations by the Court. We can either hope for 100 years of Supreme Court reversals, or use the tools the Founders gave us in Article V.
Second, we have a history of Amendments, and they are generally followed pretty well. Think of 13th, 14th, 16th, 17th, 19th, 21st, etc. This is because Amendments are achieved by enormous acts of political muscle which have the backing of the vast majority of the public. Politicians are cowards who follow, not lead. Over time we drift away from mass movements of political muscle like that. But it takes decades.”
Meckler also heads the Convention of States Project, an effort that has been instrumental in mobilizing citizens and state legislators interested in the COS process. Even though proponents of the COS option are largely conservative constitutionalists, Meckler said this hasn’t stopped Democrats from supporting COS legislation in several states. The legislator co-sponsoring the COS resolution in the Ohio House of Representatives is a Democrat. Eight Democrats also supported the COS resolution in Oklahoma, which passed last month. “Those are just two examples,” Meckler said, “but there are many more.”
As far as amendment topics are concerned, states having passed legislation calling for a COS have limited their applications to a convention for proposing a balanced budget amendment as well as proposing some type of term limits, both of which hold about 80% the public’s support. “The Amendments which will actually come out of convention and be ratified are those with exceptionally broad public support,” Meckler added. “Anything polarizing is likely to not come out of convention, and if it did, would not be ratified.”
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