Reining in the federal government through a Constitutional Convention of the States

Author: Miller Hudson - April 4, 2014 - Updated: April 4, 2014


“On the application of the Legislatures of
two-thirds of the several states, (Congress) shall call
a convention for proposing amendments.” Article V

Last week nearly 250 Coloradans paid $10 each to attend a rally at the Colorado Convention Center for the nascent Article Five movement. A panel discussion, moderated by Independence Institute Senior Fellow Rob Natelson, author of “The Original Constitution: What it Actually Said and Meant,” offered a tutorial on who, why and how voters might trigger a Convention of the States for the purpose of proposing amendments to the U.S. Constitution. The long-ignored provision that supplements the traditional amending process whereby two-thirds majorities in both Houses of Congress may refer proposed amendments to the states for ratification by three-fourths of state legislatures was the subject of the 85th and final Federalist paper. Envisioned as a safety valve for an aggrieved populace confronting a Congress spun out of control has never been used, but that could be about to change.

By the early 1980s, 33 of the needed 34 states (or, more importantly, the 38 required for ratification) had approved petitions to Congress urging a federal balanced budget amendment. Following the election of Ronald Reagan, much of the steam escaped from this movement. It was also confounded by the fact that the specific language in various state resolutions would have been subject to legal challenges from opponents. A Convention of the States requested by two-thirds of state legislatures avoids this problem. Delegates would be free to consider and debate any and all proposals, where each state would be awarded a single vote, including those states that had not demanded the Convention (likely to be the darkest blue of Democratic bastions). Moderation and compromise would be incumbent on participants, as the Convention’s recommendations would continue to require ratification by three-fourths of the states. The chances of a runaway convention appear vanishingly small under such circumstances.

Nonetheless, the putative Article Five convenors speaking in Denver seemed fueled by a list of grievances with Congress, with the Supreme Court, with the Federal Reserve and with our current political process that would likely stretch the sympathies of many voters. Robert Berry, author of “Amendments without Congress: A Timely Gift from the Founders,” expressed support for Congressional term limits, a single subject limitation for bills and Congressional review and approval of federal regulations — all reforms that might well enjoy super-majority support. His interest in a larger, expanded Congress with additional members, closure of gilded Washington offices in favor of tele-linked Congressional delegations co-located in each state Capitol, and a two-thirds approval of increases in the federal debt by state legislatures are certainly outside the box proposals. They may also push the boundaries of the feasible. (Just imagine the squealing from the lobbyists along K Street’s Gucci gulch.) Yet, as Berry amiably argues, “Why not put such ideas up for a thorough airing?”

Michael Farris is the chancellor of Patrick Henry University and the intellectual force behind the Convention of the States initiative. He is more than a little chafed with the behavior of our Supreme Court, feeling they have broadened the general welfare and commerce clauses far beyond any rational connection with the intentions of the Founders. He complained that the Constitution as interpreted by the Court has little connection with the Constitution as it was written — pointing out that the only restraint on the Court today is its sense of self-constraint. He also advocates expanding the legal definition of spending to include the assumption of liabilities. Farris also suggests term limits for Supreme Court justices, and proposes a rotation of terms for Congressional members forcing them to sit out one or two terms before they become eligible to return. Intriguing suggestions, to be sure. How about a 50-member Supreme Court with a justice appointed from each state? Mark Meckler, an organizer of the Tea Party Patriots in California also serves as president of Citizens for Self-Governance. He expressed his support for the convention and emphasized the need to protect individual freedoms.

In fact, each speaker referenced onerous, federal infringements on our personal liberties. The well-dressed crowd nodded in agreement, although precisely what these incursions on our freedoms might be was never explained. It seemed to be presumed that these thefts are self-evident. One state has already approved a convention call and four more are likely to ratify the call later this year. Colorado Sen. Kevin Lundberg, co-chair of the State Legislatures’ Article V Caucus, and Rep. Lori Saine are introducing a call resolution at the state Capitol. It isn’t likely to go anywhere this year, but disgust with Washington is rapidly becoming a bi-partisan enthusiasm. Achieving 34 endorsements may prove easier than anyone would guess.

When Robert Berry proposed a vast expansion of Congress so that members could represent smaller districts — where they would be known, truly accessible and could campaign without having to spend all their time raising dollars — he observed that the most common objection to this far larger assembly was the concern you wouldn’t get anything done because of the political gridlock. A rueful, knowing snicker swept across the room. You can’t help wondering whether a Convention of the States might not throw a much-needed scare into our elected aristocracy?

Miller Hudson served in the state legislature as a north Denver Democrat from 1979-1983. He was executive director of both the Denver Department of Excise and Licenses for Mayor Federico Peña and the Colorado Intermountain Fixed Guideway Authority that studied the feasibility of a high-speed monorail between the Denver and Eagle County airports along I-70. Currently, Hudson is a public affairs consultant.

Miller Hudson