Republican politicians have made repeated promises to restrain federal power through appointing justices who ‘will not legislate from the bench,’ or by passing laws to restrict federal power or rein in the president, but such efforts always fall flat. Rather than further more empty promises or place false hope in a long, arduous process like convention of States that has little chance of achieving the exact amendments desired, conservatives can and must seek an alternative that can work. Considering the public’s outpouring of discontent with Congress and the many challengers to sitting incumbents, the opportunity to pass legislation restraining the courts is ripe for the picking.
By Terri Hall | March 7, 2016
Gov. Greg Abbott calls for a convention of states to amend the U.S. Constitution. (Jay Janner/Austin American-Statesman via AP)
Virtually every conservative agrees that the federal government and federal courts are out of control and that something – something very drastic – must be done to rein-in federal power and federal overreach. But what conservatives do not agree on is how to do it.
In recent weeks, Texas Governor Greg Abbott and Senator Marco Rubio have called for an Article V Convention of the States, more correctly called a convention for proposing constitutional amendments. Abbott lays out nine proposed amendments ranging from a balanced budget to giving states the ability to override Supreme Court decisions. Senator Ted Cruz has called for certain constitutional amendments (to balance the budget, impose term limits, and restore power to the state legislatures), but has not stated the process he prefers to get there – whether through a two-thirds vote of the Congress or through an Article V convention.
But a much more pragmatic approach advanced by the Selous Foundation for Public Policy Research, the Empower the States Project, is an Article III, Section 2 Act of Congress to remove certain issues from the jurisdiction of federal courts, leaving the power to the states to decide controversial issues pertaining to immigration, the death penalty, abortion, and marriage.
Convention of the states advocates believe they can bypass a perpetually feckless Congress and call a convention of the states to propose amendments restricting federal power. However, a closer look at Article V reveals the states do not possess the power in and of themselves to call a convention. States merely have an opportunity to submit an “application” (or petition) requesting Congress call a convention. As Phyllis Schlafly rightly points out, Congress has habitually ignored such applications and will continue to do so. Plus, Congress can determine which applications from the states they consider valid, leaving Congress the ability to manipulate any effort to bypass them.
Then there’s the problem of logistics. If Congress were to grant such a convention, it, too, decides in the ‘call’ the delegates, their powers, and the procedures for how the proposed amendments would be adopted by the delegates. The convention itself determines the agenda, not the states. The Constitution is silent on much of the logistics as to how such a convention would operate, leaving an open-ended process which is ripe for chicanery. Also, how would each state’s delegates be apportioned? Would each state be apportioned a single delegate like it was in 1787 or would it be apportioned by population (like Congress)? Neither the states nor the people have any standing in the courts to protest any of the procedures or the amendments that result from any Article V convention, creating further chaos.
Then, there’s the problem of a potential negative revision of the Constitution in a convention run amok. Mark Levin, an advocate of a convention of the states, argues that because three-fourths of the states would have to ratify any amendments resulting from a convention that the likelihood of a runaway revision of the Constitution is slim. However, whether or not a convention adopts specific amendments to be ratified by three-quarters of the states, Congress decides how that ratification occurs, whether by adoption by state legislatures or a state convention, which is yet another invitation for disaster. If bad amendments result from a convention, even if most states fail to ratify them in the near term, these amendments could still be ratified at any time in the future unless a state specifically takes action to rescind them. This opens the door to a radical change in the Constitution looming in perpetuity.
So, not only is an Article V convention an opportunity for chaos, it’s also extremely difficult to achieve. The bar is set so high — requiring 34 states to request a convention and three-quarters of the states to ratify any amendments. It’s why constitutional amendments are so very rare and highly unlikely.
Plus, most of any convention to propose constitutional amendments is determined by the very Congress that has been complicit in federal overreach in the first place. It’s why Congress will not impose term limits upon itself or balance the budget. It’s broken. While a litany of Republicans and think tanks have made well-intentioned calls for an Article V convention, its potential for a beneficial outcome in restraining federal power, in either the short or long term, is problematic, to say the least.
A better way
A simpler, more achievable path has been proposed by Andrew Thomas, graduate of Harvard Law School, former Maricopa County District Attorney, and Bradley fellow with the Heritage Foundation. Thomas, now a senior fellow at the Selous Foundation for Public Policy Research, lays out the proposal in the Empower the States initiative. It would invoke the power of Congress under Article III, section 2 of the Constitution to remove the courts’ power over certain issues. The Selous Foundation proposes to remove the court’s jurisdiction over some of the most contentious social issues of our time: immigration, the death penalty, abortion, and marriage. However, such an action does not have to be limited to these issues. Thomas drafted a one-page sample bill that could be based on a simple majority vote of the Congress. A much easier bar to achieve than any proposed constitutional amendments.
In his white paper, Thomas laments the half-century of failure, where “Every election cycle, Americans witness a disingenuous ritual. Republican candidates promise to fight the most recent batch of liberal court rulings with tactics proven, over the last fifty years, to be completely ineffective.” He calls the first stock promise, “seeking to amend the Constitution,” which he characterizes as “a political cop-out” and “a high-sounding way to avoid seriously addressing activist court rulings.”
The second standard promise of passing more laws doesn’t work either. “These laws are then litigated for many years, often a decade or longer. Any eventual gains from these cases are tardy and trifling. By then a whole new generation of Congressmen are in office, ready to try the same tactic before an often-forgetful conservative electorate.”
While this Empower the States approach would still require a majority of the already problematic Congress to succeed, it’s a simpler and far more pragmatic solution than the empty promises and potential long-term chaos of an Article V convention and the subsequent uphill battle to ratify proposed constitutional amendments.
Thomas calls it “reclaiming self-government,” writing that “Congress has done this in the past, though not on the controversial cultural issues where action is urgently needed today. The Supreme Court has repeatedly upheld past congressional restrictions of its jurisdiction. Indeed, the language of Article III is so clear and unambiguous that the high court has been obliged to concede such limitations despite its obvious conflict of interest in allowing its own powers to be curbed.”
Republican politicians have made repeated promises to restrain federal power through appointing justices who ‘will not legislate from the bench,’ or by passing laws to restrict federal power or rein in the president, but such efforts always fall flat. Rather than further more empty promises or place false hope in a long, arduous process like convention of the states that has little chance of achieving the exact amendments desired, conservatives can and must seek an alternative that can work. The Selous Foundation’s Empower the States project with sample legislation and candidate pledge should be a litmus test for every candidate running for Congress or for president. Considering the public’s outpouring of discontent with Congress and the many challengers to sitting incumbents, the opportunity to pass legislation restraining the courts is ripe for the picking.
Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of ten turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis.