The Fascinating Story of How the States Used the Constitution’s Amendment Procedure to Adopt Reform, 1789-1913

Common sense tells us that an out-of-control Congress is not going to rein in its own power. The American Founders predicted this might become the case, so they provided a way by which the state legislatures could propose and ratify corrective constitutional amendments without Congress being able to stop them. This is the “state-application-and-convention” procedure of…


Want to push back against federal overreach?

Arm yourself with constitutional information Sept. 30 in Colorado! Dave Kopel and I will be offering a one-time public class on the Constitution in Colorado Springs. The program, co-sponsored by the Colorado Springs Gazette and the Independence Institute, is called “A Constitutional Guide to Fighting Federal Overreach; A program for the Grassroots.” The class will run from 2…


II Submits Brief Destroying Basis for Suit against Colorado’s Taxpayer Bill of Rights

The Independence Institute, through Dave Kopel as legal counsel, has submitted anamicus curiae (“friend of the court”) brief opposing the lawsuit to overturn Colorado’s Taxpayer Bill of Rights. The brief destroys the plaintiffs’ claim that by allowing citizens to vote on tax increases, Colorado is violating the U.S. Constitution’s requirement that all states have a “republican…


Confused About an Article V Amendments Convention? New Article Provides Answers

As I predicted in this column, Congress’s continued inability to deal effectively with the debt crisis is AGAIN provoking interest in bypassing Congress with one or more corrective constitutional amendments. We could do this if the state legislatures use their constitutional power to bring about what the Constitution calls a “convention for proposing amendments.” I’m delighted to report…


Reining in Congress: An Enforceable Balanced Budget Amendment

There is growing sentiment that one or more constitutional amendments may be necessary to rein in the runaway Congress.

The principal mechanism the Founders built into the Constitution for such contingencies is the procedure in Article V by which two thirds of the state legislatures force what the Constitution calls a “Convention for proposing Amendments.”    Essentially this is a meeting of state legislative representatives for the drafting of one or more amendments on subjects designated by the legislatures.

Of course, Congress and its apologists have every reason to prevent such a convention from being called, so they have widely misled people as its nature and powers.  But if corrective amendments are to be proposed, there is no alternative to such a convention. History has shown that Congress will not do it:  Repeal of Prohibition aside, Congress has not proposed a constitutional amendment to limit or define its own powers since it passed the Bill of Rights in 1789!

In other posts I have dealt with the convention bugaboos—see, e.g., here and here. They need not detain us at this point. The more important questions are:

* What amendments are appropriate? and

* How should they be drafted?

Many people have their own pet amendments they’d like to see passed, but realistically, any such proposal must meet at least four criteria. To illustrate, I’ll test versions of balanced budget amendments against each of the four:


More evidence the Constitution limited federal power

In my last post I showed how pre-Revolutionary colonial pamphlets espousing the American cause tend to rebut a favorite theory of some “progressive” writers—that the Constitution granted Congress nearly complete power over all activities with interstate effects.

Surprisingly, most delegates to the 1787 constitutional convention initially favored a central government nearly that powerful. They would have subordinated the states to the level of counties in England. Naturally Alexander Hamilton—“Mr. Big Government” among the Founders—took this position. But so did many of the convention’s moderates, such as James Madison and Edmund Randolph.

Under Madison’s and Randolph’s guidance, the Virginia delegation presented an initial draft for a constitution commonly known as the “Virginia Plan.” It called for a national legislature with authority “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” The Virginia Plan similarly called for national courts that could hear any matter “which may involve the national peace and harmony.”

To be sure, even this language would not have granted the central government as much authority as the “progressives” claim for it today, since not all interstate effects result in state “incompetence” or damage interstate harmony. Nevertheless, it would have resulted in a very powerful central government.

The convention at first agreed, and adopted resolutions approving these parts of the Virginia Plan. As time wore on, however, the delegates thought better of it, and changed their minds. One reason was, no doubt, a recognition that the general public would never approve a strongly “national” constitution.


Obamacare is NOT “necessary and proper”

The Independence Institute has filed amicus briefs in two of the anti-Obamacare cases.  The briefs focus specifically on the Necessary and Proper Clause (I-8-18), which the Obama administration inaccurately claims justifies federal control of health care. The briefs survey the original meaning of the Necessary and Proper Clause, based on my research and that of…


Goodwin Liu: More of the Same

There has been much attention recently on the Republican decision to block President Obama’s nomination of law professor Goodwin Liu for the United States Court of Appeals for the Ninth Circuit. Attention is focused on his allegedly out-of-the-mainstream legal views.

But to this ex-law professor, Liu doesn’t look that unusual. He looks like just another of the dreary succession of tenured law professors who waste their considerable talents spinning “interpretive theories” to justify ever more federal power—particularly in areas outside the federal government’s constitutional responsibility. If you have ever studied Roman law, you will recognize their predecessors in second and third century imperial jurists who tortured the law in their efforts to explain why the Emperor should be all-powerful.


What about Interstate Compacts? A frank look at the problems

In recent months, there has been interest in states forming compacts with each other to opt out of ObamaCare or other federal programs.  The idea is that because such compacts have the effect of federal law, they will supersede earlier federal laws (such as ObamaCare).

The strategy is apparently being driven by one or more enthusiastic financiers.  But I’d like to offer a few words of caution—not just as a constitutional/legal scholar but also as a former businessman and successful political activist.

Although the compact strategy is not a complete waste of time (see below), ultimately I think it is less cost-effective than other state “push-back” methods, such as local health care freedom laws, coordinated legal challenges, and (especially) applying for an Article V amendments convention.

Why so?  Well, let’s begin with the Constitution—Article I, Section 10:

“No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State. . . . ”

As this section says directly, the states can negotiate all they want, but nothing is effective unless Congress approves.  Now what do you think the chances are of Congress approving states opting out of Congress’s own laws?