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Commenter Danimal, in response to my previous post, gives a link to an old (2009, not all that ancient) Wall Street Journal essay by Randy Barnett in which Barnett expresses some similar ideas:

…state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Barnett’s prescriptions, the content of the Amendments he proposes, are different from mine, which is both well and inevitable; we have different backgrounds and different prejudices. Some of his ideas strike me as foolish — the income tax, to me, is not a basic enough problem to warrant inclusion in the effort, and an attempt to abolish it would strike to the heart of the self-interest of enough people to attract strong opposition to the whole enterprise. If I were to seek to modify it, my suggestion would be that taxes falling under the definition of “head”, “capitation”, or “income”  enacted by the Congress should be collected by the States, and the proceeds forwarded to the Treasury, after deduction of administrative costs, with strict accounting made public. I’ve not thought out the wording of such a provision; perhaps you could help. It would require that the States not have any hand in the specification of the tax, only in collecting it according to Law passed by the Congress.

My interest is in the procedure for getting Amendments passed, and here Barnett and I agree fairly well, although he points out something I had forgotten:

It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

That is, a credible threat on the part of the State Legislatures might move the Congress to do the right thing. Alas, in this case I think not so. The 17th Amendment did not, after all, reduce the powers, privileges, and perquisites of the Congress, and arguably it increased them — certainly it had the effect of making the Senate almost totally independent of State direction, whether its original proponents intended that or not.

What I would like is to limit the powers of Congress to something more nearly approximating what I consider the intent of the Founders to have been, and the likelihood of Congress itself enacting any such limit, even under threat, is nil or worse. The procedure I propose is to pitch the matter to State Legislators as a reclamation of power from a greedy Federal Government running roughshod over their powers, privileges, and perquisites; select Amendments to include in the proposal that have the effect of giving the State Legislators power at the expense of the Congress, or plausibly take power from the Congress and award it to no one; put it in such a way that the Congress has no choice but to comply if its members wish to retain any legitimacy; and hem the proposal about with restrictions that make it less likely the resulting Convention would go off the rails.

Done that way, it can be made to appeal to the vanity, cupidity, and self-interest of the State Legislators to whom the actual proposals will be made, and who must follow through with them if anything is to be accomplished. Like any sane person, I would strongly prefer that vanity, cupidity, and self-interest be banished from the political process, but, like anyone who pays even minimal attention, I reckon that the possibility of that is even smaller than the likelihood the Congress would voluntarily yield power. People who lack vanity, cupidity, and self-interest do not enter politics in the first place, so it is useless to search for them there and madness to count on them for success.

Commenter I Callahan, elsewhere, notes a rock in the road:

Unfortunately, state legislators want to become federal legislators. It’s essentially the farm system for congress.

But does it really have to be? If the powers of the States are increased vis-a-vis those of the Congress, might there not be enough Legislators in the States who either do not care for, or don’t see a reasonable probability of, promotion to the national stage to get something useful through? It is a question that cannot be answered until the experiment is made.

The political establishment has closed ranks, most notably in the Republican Party but (perhaps less in-your-face) among Democrats as well. The resulting united front against anything that might upset their hugely profitable applecart leaves very few weak points for TEA Parties, or anyone else with an agenda that does not include re-certifying the elitists, to attack. Footslogging — trying to get hold of local partisan offices and use them to build a new organization — is needed, but it is a slow process at best. There is ultimately no substitute for shoe leather in any kind of selling, but when the opposition already has lots of boots on the ground it’s a tough slog.

There is a parallel approach that has a chance of bearing fruit despite being a little dangerous. Fortune favors the bold!

Approach State legislators. Outline of the pitch, to be modified and fleshed out at need:

You are losing your influence to Federal intrusion. Everything you do is subject to being countermanded, not just by the Congress but by unelected bureaucrats in the alphabet agencies. Yes, you still have the power to re-allocate Congressional Districts so as to protect your Party’s interests, but how much influence does that really have when you have allowed yourself to use that power to support incumbents who invariably stand against you and with the Washington Establishment in any conflict? You are even losing the power of pork. When all the money is siphoned out of the State and returned as Federal largesse, it always comes with strings like steel hawsers that crimp or eliminate any ability you may have had to favor your supporters or damage your enemies. If that trend continues, it will be unimportant whether you are honest or corrupt, and we don’t ask that question; you are becoming irrelevant, inconsequential. It is time to reassert your independence and reclaim your power.

Article V – Amendment 

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided […] that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

(Emphasis added. The bit elided has to do with defending the Great Compromise regarding slavery, and is no longer relevant in any way).

No call for a Constitutional Convention has ever been answered in the affirmative; all Amendments to date have taken the Congress -> Ratification route, and all but the 21st (repealing the 18th, alcohol prohibition)  have been ratified by State legislatures rather than conventions in the several States. In large part this is because of the example of the first Convention, the one that gave us the document we have. That Convention was called to amend the Articles of Confederation; totally replacing it was not contemplated by the States that called for the Convention and sent delegates, and a number of delegates dropped out, some of them over just that issue. That example leaves us with the disturbing precedent of a Convention that gets completely out of bounds, and the hazard has resulted in reluctance bordering on fear to call another.

That hasn’t stopped State legislatures from making calls for a Convention, but at no time in the history of the United States have there been such calls from two-thirds of the States, and the Congress has simply ignored the calls. What has been done before can be done again, and if enough States present a united front, ignoring it will be impossible.

What is needed is for thirty-four State legislatures to pass identical resolutions “simultaneously”, that is, while a particular Congress is convened. The specific text of the resolutions needs to be carefully thought out and composed, but they must:

Call for a Constitutional Convention;

Specify the proposed Amendments the Convention is to consider, using (this is hyper-important) identical wording in every State’s Resolution, including a declaration that ratification shall be by the Legislatures of the several States;

Deem the Convention called if two-thirds of the States pass the same resolution whether the Congress acts or not, on the ground that, since Article V specifies that Congress shall (not may) call such a convention in those circumstances it has no choice — if it does not do so it is operating extra-Constitutionally and is not a valid Congress;

Declare the proposed Amendments ratified by that State at the moment the Convention is called;

Declare that no other Amendments will be considered for ratification by that State if proposed by the Convention thus called, and stick to it.

Fear of an out-of-control Convention is overblown if the States don’t get excited and forget that last part. It only takes two-thirds of the States to call a Convention, but three-quarters of them must ratify any product of that Convention before it becomes operative. If the proposed Amendments are identical in every such call, there is nothing for a Convention to consider; they either adopt them as they stand, or they have no effect. The Convention is thus either a rubber stamp or a waste of time and money for all concerned.

Naturally, I would prefer that some or all of my Modest Proposals be included in the Amendments thus proposed, but some of them — particularly the restatement of the validity of Sovereignty I’ve offered — will be too much for any State legislator to stomach. Clearly, though, the encroachment of Federal authority is based on interpretations of the Constitution that favor Federal power over that of the States, and correcting the imbalance is crucial — and can only be done by Constitutional Amendment restating the provisions that support the encroachment.

This is another shoe-leather approach, but it is one that not only requires somewhat less cobbling but has a bigger payoff if it works. Grassroots organizations like the TEA Parties should coordinate their efforts — it won’t, because can’t, work unless all the Legislatures of the States push in the same direction, which will require convincing the legislators of that — to get the ball rolling. Time’s a-wasting.

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When I Posted

August 2010