The Solution Is a Convention of the States

January 25, 2021 Updated: February 25, 2021

Commentary

This is the fifth essay in a five-part series.

Almost immediately upon taking office, President Joe Biden signed a series of executive orders wiping away the progress of the Trump era and resurrecting some of the worst abuses of the Obama era. In addition, he proposed massive new spending—and more national debt—to be added to the extravagant expenditures of the past few decades.

For more than 80 years, Americans who love their country have been fighting a defensive political battle to preserve the values and traditions that made our country great. But we have suffered one defeat after another. Even the incremental successes of the Reagan and Trump administrations have been wiped away in the “progressive” tide, like sandcastles on the seashore.

This is the lesson we have learned from participating in federal politics. As I wrote in an earlier essay in this series, “In the federal political game, we always have to start on our own two-yard line and run the football uphill. The other side starts on our 20 and runs downhill. The referee (i.e., the mainstream media) calls every real or imaged penalty against our side and rarely calls one on the opposition.”

That’s accurate as far as it goes. But here’s the rest: If we do happen to get possession of the ball, we are allowed one down while the other side gets six.

That’s why in laying out agenda items in this series, I have limited myself to four that state legislatures can accomplish alone, thereby wiring around Congress. Most state lawmakers remain receptive to traditional, productive Americans in a way that Congress is not.

This essay outlines the fourth, and most important, agenda item. This is to enshrine corrective reforms in the U.S. Constitution. Experience shows that constitutional amendments have lasting power that other restraints—including laws and provisions in the original Constitution—don’t possess.

The American Founders weren’t superhuman, but they were very wise. They understood that the day might come when the federal government exceeded and abused its powers and the electoral system had failed to remedy the problems. So they inserted an additional remedy in the Constitution: the amendment process.

We usually think of constitutional amendments as responses to changed conditions. But the founding generation recognized that we can use amendments to cure constitutional drafting defects, resolve constitutional disputes, overrule bad Supreme Court decisions, and restrain federal power.

And the founding generation did more than recognize this; they acted on it.

In 1791, they adopted the First through Eighth Amendments of the Bill of Rights. The goal was to prevent abuses that might arise in the otherwise-lawful use of federal powers. At the same time, they added the Ninth and 10th Amendments to clarify limits on federal authority. In early 1795, they ratified the 11th Amendment to reverse an overreaching Supreme Court decision. Less than a decade later, they added the 12th Amendment to correct a constitutional drafting issue.

All of those amendments have had a major historical impact. Today, all but the Ninth retain at least some force.

In subsequent years, Americans have used the constitutional amendment process to institutionalize other reforms: abolishing slavery, protecting minorities from state oppression, ensuring that women can vote, and imposing term limits on the president.

Each of these amendments was ratified by the requisite three-quarters of the states. Before they could be ratified, however, they had to be proposed. In each case, Congress proposed them. But that was back when the necessary two-thirds of each house of Congress still had some sense of honor.

Today, however, Congress is abusive. It revels in its power. And as an entity, it’s mendacious: Despite repeated promises over many years, Congress still refuses to propose amendments favored by towering majorities of the American people. These include amendments requiring a balanced budget except in genuine emergencies, imposing term limits on members of Congress and on the Supreme Court, and curbing undemocratic and unfair regulations.

Anticipating this, the Founders included in the Constitution’s Article V a provision effectively granting state legislatures equal power with Congress to propose amendments. Upon the “applications” (resolutions) of two-thirds of the state legislatures, Congress must call “a Convention for proposing Amendments.” This is a task force of state delegations with authority to propose pre-specified amendments that Congress refuses to propose.

A convention for proposing amendments is a type of “convention of the states”—a very old mechanism employed many times for other purposes. However, special-interest groups have prevented such a convention from being used to formally propose constitutional amendments. They have done so primarily through an effective disinformation campaign that began during the 20th century (pdf).

In the 1970s, it appeared that the states might force a convention to reverse liberal-activist Supreme Court decisions on a wide range of subjects. (The most famous is the abortion case of Roe v. Wade.) Liberal establishment figures—academics, politicians, “journalists,” and others—were determined to prevent the American people from overriding the court. So they decided to frighten people away from the convention route by publicizing scare stories.

They claimed, for example, that a convention of states would be almost unprecedented and that its procedures and composition were unknown. They simultaneously argued both that it would be an uncontrollable “constitutional convention” and that Congress could control it.

Mainstream media outlets, particularly The New York Times and The Washington Post, readily spread these falsehoods (pdf).

Today, the campaign continues, largely carried on by groups funded by progressive financier George Soros. Left-wing professors, none of whom has ever published any scholarly research on the subject, work with these groups. They use their unique access to the mainstream media to publicize their disinformation. A handful of naïve conservatives provide them political “cover” on the right.

In 2009, I started researching the Constitution’s provision for a “convention for proposing amendments.” This was part of my regular academic duties. I received no grants or compensation for my findings, other than my regular academic salary. That’s how I learned that the claims in the disinformation campaign were false.

I published my conclusions in scholarly articles, thereby subjecting them to the review of other academics—several of whom have confirmed my core findings. I moderate the Article V Information Center website, and I continue to counsel organizations and lawmakers who wish to promote a convention. I’ve even published a legal treatise on the topic, now in its second edition.

Since I began publishing my research, more state lawmakers have come to understand why we need a convention. Indeed, a majority of state legislatures have now adopted “applications” (resolutions) to force Congress to call one. Resolutions of this kind need not be signed by the governor.

Perhaps the most prominent convention-advocacy group today is the “Convention of States” movement. It urges state legislatures to pass applications for a convention limited to proposing amendments (1) restraining federal power, (2) imposing fiscal restraints, and (3) adopting term limits on federal officials. Of course, any proposed amendments would have to be ratified by three-quarters of the states (38) before they became effective.

But once ratified, these amendments can’t be reversed by Joe Biden, Congress, or federal bureaucrats. As explained above, amendments historically have very long life expectancies, longer even than the original Constitution itself.

This is a step we can encourage state lawmakers to take and that no one in the federal government can block. By using the Constitution’s convention procedure, we can enact the reforms necessary to save the country—and we can make them permanent.

Robert G. Natelson is a retired constitutional law professor, prominent originalist scholar, senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. He is the author of “The Law of Article V” (2nd ed., 2020), a legal treatise on the amendment procedure.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.