A New Constitutional Convention

A New Constitutional Convention–Greg Abbott’s plan to limit federal power–57h.,b58

Greg Abbott spoke with evident pride about how many an times he’d sued the federal government. The total came to 31, and invariably the lawsuits challenged ii actions that Abbott believed violated federal statutes or the Constitution. Now, as Texas governor, he is no longer in court but has hardly quit objecting to federal overreach. Abbott  declared it’s time for state legislatures n to address the problem by amending the constitution.

Note that Abbott is focused on state legislatures. There is a reason for that. Under Article V of the Constitution, constitutional amendments may be proposed by a two-thirds vote in both houses of Congress or by a convention called by Congress on the  application of two-thirds of the state Ilegislatures—34, if you do the math. Thus Congress controls one path for proposing amendments while state if t legislatures control a second one. (A duly proposed amendment must then be ratified by three-fourths of the states—38.

We have, of course, proposed 33 amendments to the Constitution and ratified 27. All 33 used the first path. in which Congress does the proposing. The second path has been tried at times, but we have yet to see an amending convention. That, however, is precisely what Abbott envisions.

Abbott is struck by the history of Article V and in particular a suggestion that Congress should have veto power over any constitutional amendments. Elbridge Gerry and Alexander Hamilton were behind that idea, but George Mason pushed back, contending that “it would be improper to require the consent of the [national] Legislature, because they may abuse their power, and refuse their consent on that very account.” Mason further observed that it would be “exceptionable & dangerous” to give Congress such a veto because “no amendments of the proper kind would ever be obtained by the people if the [national] Government should become oppressive, as he verily believed would be the case.

As Abbott sees it, “The Framers intended for States to call  for conventions to propose constitutional amendments when, as now, ii the federal government has over- stepped its bounds.’     The 92-page, heavily footnoted plan discusses the federal  government’s exercise of its three powers—legislative, executive, and judicial—over the past century and finds that “all three branches of the federal government have wandered far from the roles that the Constitution sets out for them,” grabbing more and more power to the detriment of the states.

The Texas Plan offers nine constitutional amendments. The first and second respond to what the plan calls  “Congress’s decades-long project of self-empowerment,” which has been accomplished primarily through the commerce  and spending clauses. The commerce clause gives Congress the power to regulate commerce “among the several states,” but Congress has used it “to regulate every conceivable  activity in America.”  The amendment the plan suggests would  “prohibit the federal government I from regulating any activity that is confined   within a single state. The spending clause gives Congress the power “to lay and collect Taxes, Duties, Imposts and Excises,  to pay the Debts and provide for to pay the debts and provide for the common defense and general  Welfare of the United States.” The Framers regarded the clause as a limitation on spending, but Congress “has gradually and successfully turned [it] into an affirmative grant of power to do whatever it wants with federal tax dollars.”

The Texas Plan discusses the remaining seven amendments in like  manner, explaining the problems and stating constitutional remedies. Thus, the plan takes on the administrative state and calls for one amendment that would prohibit agencies from creating federal law and another  that would prohibit them from preempting state law. The plan examines the problems of judicial activism and supremacy, and proposes one amendment that would allow a two-thirds majority of the states to override a Supreme Court decision and another that would require a seven-justice  supermajority vote for Supreme  supermajority vote for Supreme Court decision        invalidating a democratically enacted law.

The plan then takes up the decline of  state authority and the resulting loss  of liberty, suggesting three amendments. One would restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution. Another would give states authority to challenge federal actions that exceed enumerated powers. And a third would allow a two-thirds majority of the states to override a federal law or regulation.

The nine amendments deal with  the nine amendments deal with constitutional issues, involving the enumerated powers and the separation of powers, federalism and the Tenth Amendment, liberty and limited government. With each amendment there’s much to debate. What Abbott wants from the legislature next year might be called second-path legislation: a resolution in which Texas makes its application for an Article V convention, one limited to proposing amendments designed to restrain a too-powerful federal government.

The Convention of States Project, founded in 2012 by former Tea Party leader Mark Meckler and constitutional lawyer Michael Farris, has been  promoting the idea of an amending convention that would propose measures limiting the power and jurisdiction of the federal government. Four states—Georgia, Florida, Alaska, and Alabama—have passed their applications.

Republicans control the legislatures of 31 states. The Texas Plan recalls past arguments made against Article V convention efforts and anticipates they will  be used again—chief among them that there could be a “runaway” convention “in which the states propose a convention to debate limited amendments, but … the delegates end up throwing the entire Constitution in the trash can. ‘Senator Marco Rubio wrote or last month in USA Today that “this method of amending our Constitution has become necessary  today because of  Washington’s refusal to place restrictions on itself.

source–weekly standard (2/8/16), terry eastlnd, greg abbott, texaz public policy foundation, mark meckler, michael farrisusa today, mark rubio,texas monthly

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