No amendment to the Constitution was ever the result of a convention called for by state legislatures. All amendments were proposed in Congress, received the required two-thirds majorities in both houses of Congress, signed by the President, and referred to the states for approval. The pipe dream of an Article V convention called for by the states is not going to happen.
The recent announcement by Texas Governor Greg Abbott for such a convention confined to nine issues- some overlapping- is nice politics devoid of reality. This writer certainly has no problem with these proposals. The scope and power of the federal government needs to be reigned in across the board. But, the amendment process is wasted time.
First, some facts. One needs 34 state legislatures to petition Congress to call such a convention. Some legal scholars argue over whether Congress must even call the convention although the wording of Article V seems to indicate that they must do so. There is debate over the specificity of the petitions also. For example, several states have petitioned Congress to call a convention to specifically pass a balanced budget amendment. In that case, the convention called would address only that issue. The proposed petition which has Abbott’s backing addresses nine issues. As a previous article mentioned, it has the support of four other states to date.
The road to 34 states agreeing to an identical petition is lined with minefields. What, for example, would happen if a more liberal state like California agreed to the petition provided they add the subject of campaign finance control? In exchange for numbers one through nine, could California add a number 10? Having been altered, would it have to go back to the preceding states and the process start over? The opponents of such a measure exceeds 16 at this point. There are 11 states on the East Coast alone that would never allow this proposal to see the light of day in their legislature. Throw in Hawaii and three West Coast states and the opposition needs only two more states.
But, let’s just say that it reaches the 34 state threshold and goes to Congress. Although there is debate, Congress would then likely have to call the convention. The next question is who proscribes the rules for that convention? Do the states put their heads together and come up with the rules, or does Congress make the rules? This is uncharted territory. But, let’s assume further that this issue is resolved and a convention is called.
The proposals (although admittedly good) are a who’s who wish list of conservative ideals. Unfortunately, there are liberal states that would never agree to them in part or whole. There would be impassioned speeches and one suspects that a modern day Patrick Henry would emerge, but that would be it. It would result in great speeches and increased restaurant sales wherever the convention took place.
These proposals are obviously designed to reign in the federal government and the Supreme Court. But, they cut both ways. For example, let’s assume we require the federal government to only act on their Article I, Section 8 powers which includes immigration law. Texas and every border state would therefore have to defer to the federal government in all areas of immigration. No more dispatching the Texas National Guard to the border, no more Maricopa County, Arizona tent prisons. With the Supreme Court 7 Justice supermajority requirement, a bad law like McCain-Feingold would stand since it was, after all, democratically enacted. What if Congress passed a law guaranteeing Planned Parenthood funding no matter what? Proposals like the ones set out are ripe with minefields and likely to come back and bite conservatives on their butts.
This writer understands the frustration on the Right about how the federal government, sometimes aided by a complicit Supreme Court, oversteps its bounds. There is a better solution rather than wasting time and effort calling for an Article V convention: elect people who respect the Constitution and the institutional checks on power of the federal government, and who respect the natural rights of citizens.
Why are we even wasting time and effort discussing something that will never come to fruition? It is a fine academic exercise to speculate, but it is all hypothetical and guaranteed to remain that way. Besides being political grandstanding, it is on par with dream interpretation at the end of the day. The Right needs to wake up, move on and deal with reality.