The case for state-proposed amendments to the Constitution
Non-partisan, state-proposed constitutional amendments will restrain an overbearing, irresponsible federal government
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Robert J. Thorpe
February 23, 2011

The Framers anticipated that the U.S. Constitution would need to be amended from time to time, necessitating what James Madison referred to as government's ability "to originate the amendment of errors." They believed that new amendments might be necessary due to changed circumstances, to clarify ambiguities or to restrain the federal government should it abuse or exceed its powers. From the very beginning, the states demonstrated their endorsement of the amendment process and asserted their authority over Congress when they refused to ratify the Constitution until they received assurances that a Bill of Rights would be added, which comprised the first 10 amendments.

Article V of the Constitution therefore provides both Congress and the states with the exact same authority: to "propose" new amendments. When two — thirds of the states apply to Congress for an Article V convention for proposing amendments, the convention is nothing more than a drafting body, acting on behalf of its constituent states. Whether proposed by Congress or through state convention, amendments must then be ratified by at least three — fourths of the states before becoming law.

A historical perspective

Our early government leaders recognized the limitations of the Articles of Confederation. Prior to our first and only Constitutional Convention held in 1787, it was decided that it would be better to write a constitution than to attempt to renovate the Articles. Their convention was not a "runaway," and delegates did not overstep their authority or usurp the government. They met with a defined mandate from Congress: to write the Constitution that would replace the Articles and "establish in these states a firm national government."

Our founders recognized the need for and encouraged the use of state — proposed amendments. James Madison, in Federalist No. 43, wrote about this important Article V authority, equally shared between Congress and the states, that should be used to correct errors in our government and Constitution "It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other."

Alexander Hamilton, in the Federalist No. 85, wrote about how state legislatures should be trusted to hold back an out — of — control central government: "We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority."

In 1788, George Washington wrote that the "constitutional door is open for such amendments as shall be thought necessary by nine States" [or two — thirds of the original thirteen.]

John Dickinson, in the "Fabius" essays, warned the states about negative consequences if they did not use their authority to restrain an overbearing federal government: "It will be their own faults, if the several States suffer the federal sovereignty to interfere in the things of their respective jurisdictions."

The long historical use of an Article V type authority can be traced back as far as seventeenth — century England. The Framers gave the states this crucial constitutional authority to pass amendments in order to restrain the federal government, should it abuse or exceed its power, and to solve problems that Washington could not or would not address.

Needed reforms

For well over 30 years, one of the most popular amendment proposals has been for a balanced federal budget, a requirement that most state governments must also fulfill. In the 1980s, the applications to Congress fell two states short of the required two — thirds needed to call for a convention for proposing a balanced federal budget amendment. In response to state pressure, in the mid 1990s, the U.S. House of Representatives passed a balanced budget amendment, which failed in the Senate by just one vote. According to the congressional record, since that vote the words "balanced budget amendment" have been stated almost 1,900 times on the floors of Congress.

Our $14 Trillion national debt is staggering, and growing by $4 Billion per day. The federal government has repeatedly demonstrated its inability or unwillingness to make tough, fiscally responsible choices. Even with considerable public and political support, it has been nearly impossible to enact federal accountability and needed fiscal restraints.

But balancing the budget is politically distasteful in Washington, because it reduces congressional power by imposing a fiscal restraint that doesn't currently exist. Additionally, it may anger constituents, who fear changes to their entitlements, and it will impose long overdue fiscal responsibility on programs such as Social Security, Medicare, welfare, military spending, education, and farm and corporate subsidies. Unless we mandate fiscal restraint, America faces economic collapse, or as John Adams predicted, "Democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a Democracy that did not commit suicide."

Who do you trust, Congress or the states?

With greater regularity, Congress has produced mind — numbingly long pieces of legislation containing huge expansions of government, power grabs, earmarks, and political paybacks. Members vote on these 2,000-page leviathans without ever bothering to read the fine print or understand the scope or details of the legislation. These bills increase Washington's control and power over the nation, while sheltering and granting immunity to the government from the very laws they impose upon the rest of us.

During the 1995 balanced budget amendment process, Congress proved that it cannot be trusted to propose amendments that are free of legal loopholes and exemptions for their special interests. Congress will never willingly enact essential restraints of its own increasing power, or place mandates upon itself to run government more prudently, which leaves these important, neglected responsibilities to the states and to the people.

Unfounded fears of wielding constitutional authority

In the 1980s, an Article V convention for proposing a balanced federal budget amendment fell two states short of being convened. Since that time, groups like Phyllis Schlafly's "Eagle Forum," the John Birch Society, and others have lobbied state legislators not to use Article V authority, for fear that a convention for proposing amendments would somehow become a "con — con," or runaway "constitutional convention," of which no mention, process, or mechanism exists within the U.S. Constitution. They're afraid that numerous harmful amendments could be ratified, or that the Constitution could even be rewritten.

According to Professor Robert G. Natelson, "The Founders created the state — application — and — convention process primarily as a way to rectify federal abuses of power. The charge [that a Convention to Propose Amendments is a 'con — con' that could result in a 'runaway'] apparently originated among convention opponents in the nineteenth century, who rested their case on the (substantially false) belief that the 1787 constitutional convention had been a 'runaway.' Their argument did not gain much traction at the time, but in the 1960s a group of left — wing law professors and judges promoted the charge to frighten people away from trying to reverse activist Supreme Court decisions."

Nick Dranias of the Goldwater Institute states that "Article V of the U.S. Constitution gives a supermajority of state legislatures the power to call a convention to restrain an overreaching federal government through targeted constitutional amendments. There is no reason to worry about a 'runaway' convention because three — fourths of the states — 38 states — would have to ratify whatever amendment might be proposed. Moreover, nothing in the nation's history justifies fear of a 'runaway' convention. It is a myth that the U.S. Constitution was born of a 'runaway' convention. The truth is the Convention of 1787 had an incredibly broad mandate from Congress — to establish 'in these states a firm national government . . . [and] render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.' In proposing the Constitution to amend the Articles of Confederation, the 1787 convention stayed well within the congressional call, as well as within the commissions of most delegates."

Opponents also argue that before introducing new amendments, Congress should be forced to abide by our current Constitution. It is true: Congress needs to be held to a higher standard and forced to abide by the Constitution and their defined enumerated powers.

However, never in their wildest dreams would the Framers have guessed that our reckless federal government would amass over $134 Trillion in national debt and unfunded entitlements, thus saddling each taxpayer with $1.2 Million in federal debt. New amendments are needed whenever the Constitution does not directly address problems that government creates or refuses to resolve, such as our unrestrained borrowing and spending. Congress cannot be trusted to police itself when it routinely violates its own laws, such as "Pay — Go," which requires all new legislation be "deficit neutral." A "Debt Ceiling" restraint was enacted to control federal spending, but in the last 10 years, Congress has raised the debt ceiling 10 times, sometimes twice in the same year, and 98 times since 1940. Raising the debt ceiling once again illustrates Congress's inability to restrain and manage itself prudently.

If in fact the Constitutional Convention of 1787 was a "runaway" where delegates exceeded their mandates and authority, then why did George Washington, James Madison, Alexander Hamilton, and the fifty-two other respected delegates include Article V convention authority in the Constitution, and why did the states ratify a constitution with that provision? If it had actually been a runaway (which is a bad thing), steps would have been taken to ensure that it never happened again, which would have also been reflected in the historical record.

These unfounded fears of a runaway convention have no legal or historical basis in fact. More importantly, they damage our nation by impeding the states from exercising their constitutional authority to enact needed federal reforms, which would greatly benefit our nation.

Checks and balances

The irrational fear of using Article V by the states is simply unfounded. Here are some of the checks and balances that protect the Constitution and the amendment process, and ensure that conventions are limited in scope:

Application: Prior to convening a convention for proposing amendments, a supermajority (two — thirds) of the state legislatures must approve and submit applications to Congress for a convention, and specify the subject of the proposed amendment(s). If, for example, the subject is a "balanced federal budget," then Congress could possibly reject any approved amendment(s) that come out of the convention that do not match or that exceed the scope of the state-approved application(s) to Congress.

Delegates: The convention delegates are chosen to represent the specific instructions and the will of their respective states. The states will select intelligent delegates who are loyal to the wishes of their state, and obligated to respect the purpose of the convention, and the amendment subject, as defined in the state- approved application(s) to Congress.

Ratification: Regardless of whether an amendment was proposed by Congress or through state convention, three — quarters of the states must ratify all amendments before they become law. The states are morally obligated to only ratify amendments that are legal and improve the nation.

Repeal: By utilizing Article V, either Congress or the states can always propose new amendment(s) that repeal unwanted, outdated, or defective amendment(s).

Conclusion:

The Founders would be shocked to learn that in the past 200 years, the states have never fully exercised their constitutional authority to propose amendments and hold back an increasingly powerful and irresponsible central government. Only Congress has proposed amendments, including some that have greatly increased congressional power. And since 1789, Congress has almost never proposed an amendment restraining its own power, with the exception of the Bill of Rights and the repeal of Prohibition. Against the Founders' stated wishes for a limited central government, an imbalance now exists which renders the federal government with more and more power, compared with the states and the people.

The states were given this crucial Article V constitutional authority to hold the federal government to a higher standard and to impose reforms and accountability upon Washington. State-proposed amendments, such as a balanced federal budget, would dramatically improve the lives of current and future generations of Americans, while safeguarding our nation against third-world economic collapse.

According to John Adams, "The people should never rise without doing something to be remembered — something notable and striking." State legislators, who selflessly demonstrate both leadership and individual bravery, are desperately needed to assume this historic challenge of repairing our ailing Constitutional Republic. If they accept the challenge, history will remember them and their achievements as being both notable, and striking.


Robert J. Thorpe is a former UCLA Ext. instructor, a Constitutional lecturer and author of "Reclaim Liberty: 3 — Step Plan for Restoring our Constitutional Government." Thorpe is a member of a national team of constitutional scholars, academics, experts, and lawmakers who volunteer their time assisting state legislators by promoting Article V education, solutions, and several important amendments. Learn more at www.ReclaimLiberty.us "Laus Deo" Copyright © 2011 Robert J. Thorpe

 


They that wait upon the Lord shall renew their strength. —Isaiah 40:31