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National Review: "The states are rallying" to a Convention of States

Last week, one of the most significant events in the history of our constitutional republic in our lifetime occurred: Delegations, consisting primarily of state legislators, from all 50 states gathered in Colonial Williamsburg with the intent to rein in the federal government’s abuse of power. An assembly of 137 delegates representing every state quietly convened in a simulation that, when convened officially, could effectively strip Washington of its purloined power overnight. Legally.

What’s this all about?

Article V of the U.S. Constitution grants Congress the power to propose amendments to the U.S. Constitution, and we’re all familiar with that process. It’s happened successfully 27 times in our nation’s history, and it’s how we’ve accomplished some important things, like ending slavery and guaranteeing women’s right to vote. But Article V also grants the same power to the states to propose amendments to the U.S. Constitution. That power hasn’t been exercised in American history — yet.

The reason this provision was added to the Constitution, just two days before the close of the 1787 convention, was a concern raised by George Mason. In keeping with the checks and balances of the Framers, Mason believed that no branch of government should have the power to determine the extent of its own power. He predicted that someday the federal government would abuse the carefully enumerated powers bestowed in the text of the Constitution. When that day arrived, structural amendments would be needed to curtail federal usurpations, but if Congress alone had the power to propose amendments, no corrections would ever be forthcoming. Based on this clear-headed observation, the Framers unanimously added the option for the states to propose amendments through a convention of states.

The U.S. Constitution is a grant of specific, limited powers to the federal government to fulfill its duty to preserve and protect individual rights and promote the “general welfare.” But the Founders recognized that the federal government might overstep and abuse those powers, and that it was highly unlikely Congress would then act to restrain itself. So the Founders also gave the states the power to convene together and propose amendments to the Constitution to restrain federal abuses, in what Article V calls a “convention” of the states. Article V reads:

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 . . . 

In other words, two-thirds (34) of the states pass an application for a convention to propose amendments, then the states choose their delegates, and whatever amendments are passed at that convention by the states still need to be ratified by the same process as any congressional amendment. Over the years, the states have enacted over 400 applications for a convention, but none has ever been called, because two-thirds of the states have never agreed on the subject matter for such a convention.

Several states have already called for a convention to impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and impose term limits on federal officials.

It was this application that formed the framework for the convention-of-states simulation last week in Colonial Williamsburg. Every state sent delegates, who spent two days debating dozens of ideas for amendments under these general topics. The simulated convention passed significant amendment proposals on the following six ideas:

  1. Requiring the states to approve any increase in the national debt
  2. Imposing term limits on Congress (effective retroactively)
  3. Limiting federal overreach by returning the Commerce Clause to its original meaning
  4. Limiting the power of federal regulations by allowing an easy congressional override
  5. Requiring a supermajority to impose federal taxes and repealing the 16th Amendment, which legalized the federal income tax
  6. Giving the states (by a three-fifths vote) the power to abrogate any federal law, regulation, or executive order

Other amendment proposals were discussed and debated, including term limits on the Supreme Court and giving the states the power to vacate a Supreme Court opinion. The simulation lasted only two days, but the real convention of states would have sufficient time to consider amendments and carefully craft final texts.

Importantly, the Convention does not have power (just as Congress does not have power) under Article V to rewrite or completely overhaul the U.S. Constitution, or propose amendments beyond the scope of the application passed through each state legislature. Two of the nation’s foremost constitutional attorneys have written extensively on the procedural safeguards of a convention of states, and this simulation showed exactly how and why it will work as a check on the federal government, exactly as intended.

This is the Founders’ solution to Washington’s hunger for power and institutional corruption, and the states are rallying. Going into the 2017 legislative sessions, eight states have passed the convention of states application and another 30 states have considered it.

We all need to pay attention to the states and the Convention of States Project. We may feel horribly frustrated at national-level politics and parties for dozens of reasons. But we have one very important reason to remain hopeful for the preservation of liberty — at the state level, the convention of states can and will happen. We can and should get involved in our states and help lobby our legislators to pass the application for a convention.

The future of our country doesn’t rest solely on the results in November. There is a much bigger and better solution in the U.S. Constitution itself — in Article V. —

Jenna Ellis is a constitutional law attorney and a professor of legal studies at Colorado Christian University. She is the author of the book The Legal Basis for a Moral Constitution and a fellow at the Centennial Institute.

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