Restoring the Rule of Law

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V. THE PROCESS

B. Objections to an Article V Convention Lack Merit

The Framers intended for States to call for conventions to propose constitutional amendments when, as now, the federal government has overstepped its bounds. And over the last 200 or so years, there have been hundreds of applications calling for such a convention spread out among virtually every state legislature. Yet no application has reached the critical two-thirds threshold to require the convention.

The States' previous failures to reach the two-thirds threshold for a convention could stem from the fact that, before now, circumstances did not demand it. But it is also possible that the States' efforts have been thwarted by counterarguments that surely will surface again in response to the Texas Plan. Whatever influence such counterarguments may have in previous contexts and other state legislatures' applications for constitutional conventions, they lack merit here.

As an initial matter, the Texas Plan and the need for a constitutional convention cannot be dismissed as “radical.” It is the predicted norm rather than a deviation from it. It is expressly mentioned in the Constitution, and the proposed path is no less a part of our foundational charter than any other provision of that document. Moreover, as George Mason proved, the need for a convention called for and led by the States was foreseeable at the Founding.

And the sky has not fallen when the States have called for conventions in the past. For example, in 1977, Texas called for a convention to propose a balanced budget amendment.1) See Tex. H.C.R. 31 (1977). And at one time, the nationwide balanced-budget movement was only two States shy of the two-thirds needed to call for a convention on the subject.2) RUSSELL L. CAPLAN, CONSTITUTIONAL BRINKMANSHIP: AMENDING THE CONSTITUTION BY NATIONAL CONVENTION 73-78, 78-89 (1988). Currently there are 27 States with active resolutions calling for a balanced budget amendment, and “[a]s many as 13 more states may take up the matter this year.” Editorial, USA Today (Jan. 6, 2016), available at http://www.usatoday.com/story/opinion/2016/01/06/marco-rubio-constitutional-convention-balanced-budget-editorials-debates/78328702/. Likewise, a push for a convention to limit income tax rates was only two States shy of going into effect.3) See Cyril F. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st Sess., at 8-9, 89 (House Judiciary Committee 1957). Finally, a coalition was only one State shy of the two-thirds necessary to call a convention for the direct election of Senators; Congress preempted that effort by proposing the amendment itself.4) See id. at 7, 89. Thus, even though the States have not yet successfully called for a convention, the effort cannot be dismissed as radical or unprecedented.

Nor can critics credibly claim that a convention is “scary” or that it somehow threatens valuable tenets of the Constitution. That is so for at least two reasons. First, whatever happens at the convention, no amendments will be made to the Constitution unless and until they are approved by an overwhelming majority (three-fourths) of the States. That is an extraordinary super-majority requirement that ensures, in James Iredell's words, that “[i]t is highly probable that amendments agreed to in either of [Article V's] methods would be conducive to the public welfare, when so large a majority of the states consented to them.” 5) Debate in North Carolina Ratifying Convention (July 29, 1788) (reprinted in 4 FOUNDERS' CONSTITUTION 582). It takes only 13 States to block any measure from becoming a constitutional amendment.

Second, it is not as if the three-fourths approval requirement is the Constitution's only failsafe against imprudent amendments. The Constitution also leaves it to the States to limit the scope of the convention itself. In fact, four States already have applied for constitutional conventions that include some portion of the Texas Plan, and all of them limit their applications to specific issues.6) See Ala. H.J.R. 112 (2015); Alaska S.J.R. 18 (2014); Ga. S.R. 736 (2014); Fla. S. Mem. 476, 658 (2014). Likewise, the Texas Legislature can limit its application for a convention—or its participation in a convention—to the specific issues included in the Texas Plan and discussed above. To the extent the convention strayed from those issues, Texas's consent to the convention's activities would automatically dissolve. State legislatures could even command in their laws authorizing participation in a convention that the state must vote against any constitutional convention provision not authorized by the state.

Some nonetheless argue that the Constitution does not allow state legislatures to limit the scope of a convention. The critics seize on this argument to raise the specter of a “runaway convention,” in which the States propose a convention to debate limited amendments, but in which the delegates end up throwing the entire Constitution in the trashcan. Even if that happened, none of the delegates' efforts would become law without approval from three-fourths of the States. But even on its own terms, the criticism lacks merit.

The specter of a “runaway convention” goes like this. First, the critics argue, the Constitution says state legislatures “shall call a Convention for proposing Amendments,” not for confirming a pre-written amendment that the state legislatures included in their applications for a convention.7) See, e.g., Charles L. Black, Amendment by National Constitutional Convention: A Letter to a Senator, 32 OKLA. L. REV. 626 (1979); Charles L. Black, Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189 (1972); Charles L. Black, The Proposed Amendment of Article V: A Threatened Disaster, 72 YALE L.J. 957, 962-64 (1963). That means, the critics say, that States must call general, open-ended conventions; the convention delegates then perform the work of drafting the amendments; and the States' only option is to give a thumbs-up or thumbs-down at the end of the convention process. If the Framers of Article V wanted to authorize conventions limited to particular issues, the critics conclude, they would have said so.

It is true that Article V does not expressly authorize States to limit conventions to particular issues—but the problem for would-be critics of the Texas Plan is that Article V also does not require general and open-ended conventions. Indeed, that is by design. As noted above, the whole point of the second path for proposing amendments was to empower States to propose amendments to the Constitution. In adopting that second path, the Framers agreed with George Mason that the States should have constitutional redress when the federal government overstepped its bounds. And nothing that Mason (or his fellow Framers) said would suggest that the States were somehow limited in how they exercised that power to defend their prerogatives against a federal government.8) See, e.g., Grover Rees III, Constitutional Conventions and Constitutional Arguments: Some Thoughts About Limits, 6 HARV. J.L. & PUB. POL'Y 79 (1982). To the contrary, James Madison specifically noted that the Constitution was silent on the issue,9) See Records of the Federal Convention (reprinted in 4 FOUNDERS' CONSTITUTION 577). and he argued that that silence was good and necessary to preserve the States' flexibility. In Madison's words, “Constitutional regulations [of such matters] out to be as much as possible avoided.” 10) Id. at 578.

While the Constitution's text is silent on the topic, the Framers themselves were not. To take just one example, George Nicholas pointed out during Virginia's ratification debates that conventions called by the States could—indeed, would—be limited to particular issues: “The conventions which shall be so called will have their deliberations confined to a few points; no local interest to divert their attention; nothing but the necessary alterations.” 11) Debate in the Virginia Ratifying Convention (June 6, 1788) (reprinted in 4 FOUNDERS' CONSTITUTION 582). And because the States would limit their applications for conventions to particular issues, “[i]t is natural to conclude that those states who apply for calling the convention will concur in the ratification of the proposed amendments.” 12) Ibid,,,. Of course, it would not be natural to assume that the States would support the results of the convention they called if— as the critics argue—the States could have zero assurances regarding what the convention delegates would do at that convention.

* * *

The very thing that belies any allegation of radicalism in the Texas Plan— namely, the super-majority requirements for proposing and ratifying amendments—arguably undermines its efficacy as a check on federal overreach. The latter was the principal point of Patrick Henry, one of the greatest orators of the Eighteenth Century and a ferocious Anti-Federalist. He argued that the States' power to amend the Constitution did not go nearly far enough to protect the people from an overbearing federal government. In particular, he bemoaned Article V's super-majority requirements:

13) Id. at 581.

Patrick Henry might be right that even an assembly of the people will be insufficient to restore the rule of law and to bring the federal government to heel. And it is true that Article V allows a minority to oppose any amendment that the overwhelming majority of Americans support.

But far from dissuading the effort to amend our Constitution, Henry's words should encourage it. The benefits of the Texas Plan are many because any change effectuated by an assembly of the people will force the federal government— whether in big ways or small—to take the Constitution seriously again. And the downsides of such an assembly are virtually nonexistent, given that any change to our Constitution's text requires such overwhelming nationwide support. The only true downside comes from doing nothing and allowing the federal government to continue ignoring the very document that created it.

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