Site menu:

 

August 2016 Policy Study, Number 16-2

   

Restoring Constitutionalism, Federalism, and Solving our National Fiscal Crisis: The Possibility of an Article V Convention of the States

   

Article V Convention of the States: How it Works and Possible Objectives

   

 

In order to call an Article V convention of the states, a State Legislature will have to decide whether or not it wants to participate in such an endeavor. As mentioned before, two-thirds of State Legislatures must agree to call an Article V convention of the states. If the Iowa Legislature agreed to such a convention, it would have to formally place this in writing to the United States Congress. A possible example of such language would be:

 

The Legislature of the State of Iowa hereby applies to Congress, under the provision of Article V of the Constitution of the United States, for the calling of a convention of the states…[33]

 

An Article V convention of the states should not be considered a “constitutional convention,” but an “amendments convention,” that is, “a convention of the states, and subject to the rules established for its operation by the states themselves.”[34] In addition, an Article V convention of the states would also be limited in focus, and the consensus, at least from a conservative and libertarian perspective, would be for a focus on fiscal issues and restoring federalism. Also, the State Legislatures in their applications to Congress “may limit the scope of the convention to a particular subject matter.”[35]

 

In regard to the delegates, who would be sent to represent a specific state in an Article V convention of the states is to be based upon the following “founding-era interstate conventions:”[36]

 

    • Election by one house of the State Legislature, subject to concurrence by the other
    • Election by joint session of both houses of the State Legislature
    • Designation by the Executive, pursuant to Legislative authorization
    • Selection by a legislatively-designated committee[37]

During the Constitutional Convention of 1787, each state sent its own delegates to the Philadelphia Convention, and the same would work for an Article V convention of the states. The Iowa Legislature would have to decide how they would elect delegates to send to a convention of the states. Although this is what may occur in regard to delegates, there are still concerns and unanswered questions in regard to how this would work.

 

If the necessary two-thirds of states sent Congress a formal request for an Article V convention of the states, the rules would be established by the convention and the voting would be based on one state/one vote, regardless of the size of each state’s delegation to the convention.[38] In addition, “the convention must follow the rules of the Constitution, including those in Article V,” and “the convention cannot change the ratification procedure.”[39] Thirty-eight states, or three-quarters of the states, must agree to ratify any amendment that may pass the convention.

 

Governor Greg Abbott (R-TX) is taking the lead in calling for an Article V convention of the states. Abbott argues that “all three branches of the federal government have wandered far from the roles that the Constitution sets out for them.”[40] As Governor Abbott argues:

 

For various reasons, ‘We the People’ have allowed all three branches of government to get away with it. And with each power grab the next somehow seems less objectionable. When measured by how far we have strayed from the Constitution we originally agreed to, the government’s flagrant and repeated violations of the rule of law amount to a wholesale abdication of the Constitution’s design.[41]

 

Linda Upmeyer, Speaker of the Iowa House of Representatives, agrees with Governor Abbott in his call for an Article V convention of the states. As Speaker Upmeyer wrote:

 

Fortunately, our Founding Fathers foresaw the possibility that Congress would be the problem rather than a source of solutions to the country’s problems and included within Article V of the United States Constitution a method for states to propose constitutional amendments bypassing Congress. Americans realize that the nation is on the wrong path and that Congress lacks the political courage to address our challenges.[42]

 

With the current policy problems afflicting the nation, Speaker Upmeyer argues that the “time is right for the states to exert the constitutional authority provided to them by the Constitution’s Framers and to propose amendments that could set us on the right path again.”[43]

 

Several constitutional scholars joined together on September 11, 2014, to issue and sign the Jefferson Statement calling for an Article V convention of the states.[44] The signatories of the Jefferson Statement not only call for an Article V convention of the states, but also for necessary changes to restore constitutional principles, such as federalism, and to resolve some of the urgent fiscal problems confronting the nation. The purpose of an Article V convention of the states should be focused on fiscal issues. As the Jefferson Statementstates:

 

We [the signatories] share the Founders’ conviction that proper decision-making structures are essential to preserve liberty. We believe that the problems facing our nation require several structural limitations on the exercise of federal power. While fiscal restraints are essential, we believe the most effective course is to pursue reasonable limitations, fully in line with the vision of our Founders on the federal government.[45]

 

The Convention of States Project, which is leading the cause for an Article V convention, argues that the objective is to offer an amendment “that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”[46]

 

The Convention of States Project has identified four specific policy areas that would be addressed by an Article V convention of the states. These policy areas include:

 

    • The Spending and Debt Crisis:

The $19 trillion national debt is staggering, but it only tells a part of the story. Under standard accounting practices, the federal government owes around $100 trillion more in vested Social Security benefits and other programs. This is why the government cannot tax its way out of debt. Even if it confiscated everything, it would not cover the debt.

 

  • The Regulatory Crisis:

The federal bureaucracy has placed a regulatory burden upon businesses that is complex, conflicted, and crushing. Little accountability exists when agencies—rather than Congress—enact the real substance of the law. Research from the American Enterprise Institute shows that since 1949, federal regulations have lowered the real GDP growth by two percent and made America seventy-two percent poorer.

 

  • Congressional Attacks on State Sovereignty:

For years, Congress has been using federal grants to keep the states under its control. Combining these grants with federal mandates (which are rarely fully funded), Congress has turned State Legislatures into their regional agencies rather than respecting them as truly independent republican governments.
A radical social agenda and an invasion of the rights of the people accompany all of this. While significant efforts have been made to combat this social erosion, these trends defy some of the most important principles.

 

  • Federal Takeover of the Decision-Making Process:

The Founders believed that the structures of a limited government would provide the greatest protection of liberty. Not only were there to be checks and balances between the branches of the federal government, power was to be shared between the states and federal government, with the latter only exercising those powers specifically granted in the Constitution. Collusion among decision-makers in Washington, D.C., has replaced these checks and balances. The federal judiciary supports Congress and the White House in their ever-escalating attack upon the jurisdiction of the fifty states. We need to realize that the structure of decision-making matters. Who decides what the law shall be is as important as what is decided. The protection of liberty requires a strict adherence to the principle that power is limited and delegated. Washington, D.C., does not believe this principle, as evidenced by an unbroken practice of expanding the boundaries of federal power. In a remarkably frank admission, the Supreme Court rebuffed a challenge to the federal spending power despite acknowledging that power had grown far beyond the bounds envisioned by the Founders…[47]

 

Randy Barnett, a signatory of The Jefferson Statement and author of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, argues that a convention of the states would not be needed “if we were just to follow the original Constitution.” But this is not the case. Over time, the original Constitution has been undermined by the American people and by all three branches of the federal government.[48]

 

Barnett argues that “amendments can be useful to reverse the Supreme Court’s precedents that have gutted the enumerated power scheme, the separation of powers, and the textual safeguards for abuse of federal and state legislative power.”[49] In addition, Barnett argues that “structural amendments can also obviate the courts, which are currently loaded with judges who ignore the original meaning of our Republican Constitution.”[50]

 

Barnett, like the Convention of States Project, offers a solution in which he proposes a “Bill of Federalism.”[51] Some possible ideas in the “Bill of Federalism” include:

 

    • Establishing term limits for members of Congress, which the Founders decided against adding
    • Repealing the income tax amendment [16th Amendment], while empowering Congress to adopt a uniform consumption tax
    • Replacing the now-defunct power of State Legislatures to select Senators [17th Amendment] with a new state check on federal power by giving a majority of State Legislatures representing a majority of the population the power to repeal any federal law or regulation[52]

Barnett and other supporters of the Article V convention of the states argue that the nation does not “need to wait until Congress proposes such amendments to the states for ratification.”[53] It is unlikely that Congress would pass such amendments, but as Barnett and others argue, “the Founders gave state legislatures this power precisely to preserve our Republican Constitution from abuses by the federal government.”[54] 

 

Governor Greg Abbott has also offered a plan to offer amendments for an Article V convention of the states, which he refers as the “Texas Plan.”[55] Governor Abbott argues that an Article V convention is in line with the Constitution because this is what the Founders did during the crisis of the Articles of Confederation. As Governor Abbott explains:

 

Indeed, a constitutional crisis gave birth to the Constitution we have today. The Articles of Confederation, which we adopted after the Revolutionary War, proved insufficient to protect and defend our fledging country. So the States assembled to devise what we now know as our Constitution. At that assembly, various States stepped up to offer their leadership visions for what the new Constitution should say. Virginia’s delegates offered the ‘Virginia Plan,’ New Jersey’s delegates offered the ‘New Jersey Plan,’ and Connecticut’s delegates brokered a compromise called the ‘Connecticut Plan.’ Without these States’ plans, there would be no Constitution and probably no United States of America at all.[56]

 

Governor Abbott’s Texas Plan “is not so much a vision to alter the Constitution as it is a call to restore the rule of our current one.”[57] As Governor Abbott states:

 

The problem is that we have forgotten what our Constitution means, and with that amnesia, we also have forgotten what it means to be governed by laws instead of men. The solution is to restore the rule of law by ensuring that our government abides by the Constitution’s limits. Our courts are supposed to play that role, but today, we have judges who actively subvert the Constitution’s original design rather than uphold it. Yet even though we can no longer rely on our Nation’s leaders to enforce the Constitution that ‘We the People’ agreed to, the Constitution provides another way forward. Acting through the States, the people can amend their Constitution to force their leaders in all three branches of government to recognize renewed limits on federal power. Without the consent of any politicians in Washington, D.C., ‘We the People’ can reign in the federal government and restore the balance of power between the States and the United States.[58]

 

Specifically, Governor Abbott’s Texas Plan calls for the following constitutional amendments:

 

    • Prohibit Congress from regulating activity that occurs wholly within one State.
    • Require Congress to balance its budget.
    • Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law.
    • Prohibit administrative agencies — and the unelected bureaucrats that staff them — from preempting state law.
    • Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
    • Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
    • Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
    • Give state officials the power to sue in federal court when federal officials overstep their bounds.
    • Allow a two-thirds majority of the States to override a federal law or regulation.[59]

The Texas Plan, along with the ideas proposed by Barnett and the Convention of States Project, offer similar ideas aimed at restoring federalism, restoring limited government, and resolving the fiscal crisis, which the federal government has failed to address and continues ignoring. In addition, it is argued that the convention of the states would also resolve some of the language in Article I, Section 8 of the Constitution, which contains the enumerated powers of Congress. It is within these powers that Congress has used such clauses as the “necessary and proper” and “general welfare” clauses to justify expanding federal power into almost every realm of society.

 

Some have also called for an amendment to Article III of the United States Constitution to create a United States Supreme Court (composed of nine randomly selected Chief Justices from the 50 states, excepting any states which might be party to the specific suit at issue) to hear and decide cases involving disputes between the national and state governments (in addition to the existing Supreme Court of the United States, created to solve international, admiralty, and appeals from the lower national courts and agencies). Leaving the decision of whether a state or the national government should prevail in a dispute between them to the Supreme Court of the United States stacked the deck in the direction of national government expansion, whereas having the proposed United States Supreme Court do so would avoid the problem of “being judge in one’s own cause” and most likely would have resulted in a much more states-rights-oriented republic being preserved for a longer time in our history.

 

Perhaps this problem never occurred to any of the Founders. Perhaps if the thought did cross their minds, they found it inconceivable that the national government would try to exploit the “elastic clause,” the “commerce clause,” and the “necessary and proper clause” to usurp powers not explicitly granted to them in Article I, Section 8 of the United States Constitution. Perhaps they thought that a Senate made up of “ambassadors” chosen by the states (rather than directly elected by the people as the members of the House are) would never allow such legislation to pass. In retrospect, we see that this was a fatal oversight by the Founders.[60]

 

Because of the constitutional drift that has occurred for far too long and the failure of the federal government to resolve these policy problems, it appears that an Article V convention of the states would restore both federalism and fiscal responsibility, if enough states can agree. One major problem is that many states have become almost too dependent upon the federal government, and we are approaching a point where states are becoming merely administrative districts of the federal government. 

 

   

 

Click here for pdf copy of this Policy Study

 

All of our publications are available for sponsorship.  Sponsoring a publication is an excellent way for you to show your support of our efforts to defend liberty and define the proper role of government.  For more information, please contact Public Interest Institute at 319-385-3462 or e-mail us at Public.Interest.Institute@LimitedGovernment.org