The following article was originally published on The Dallas Morning News.
Texas Gov. Greg Abbott rocked the legal and political worlds recently when he issued a 70-page treatise (not including citations) that calls for a convention of the states to radically amend the U.S. Constitution.
Abbott’s “Texas Plan” proposes that two-thirds of the states call a convention to address nine constitutional amendments. They would shift significant power away from Washington and into the hands of the states. With the changes, a super-majority of states could overturn acts of Congress and even Supreme Court decisions.
We pressed the governor on several aspects of the plan. Following is the full email exchange between editorial writer Michael Lindenberger and the governor and his staff.
Gov. Rick Perry has called for additional constitutional respect for the 10th Amendment, which reserves to the states all powers not delegated to the federal government. Sen. Ted Cruz has made similar arguments, and called for an end to life tenure for Supreme Court justices. How much does your call owe to these ideas, and how is your view different than those represented by Perry and Cruz?
I commend both Gov. Perry and Sen. Cruz for their service to Texas and their leadership on matters involving the U.S. Constitution. The Texas Plan, however, differs significantly from their previous statements in several important respects. Two merit particular emphasis. First, the Texas Plan moves beyond criticizing the status quo and calls for states to take action that corrects the deviations from the true intent of the Constitution. The Constitution itself provides the path to achieve that goal in Article Vby allowing the states to call for a convention of states to consider amendments to the Constitution.
Second, the Texas Plan is not premised on policy arguments about federalism or the need to correct one Supreme Court decision. Rather, the point of the Texas Plan is to restore the rule of law in this country by ensuring that all branches of the federal government are accountable to the people as designed by the authors of the Constitution.
Without the amendments you called for, does Congress currently have the authority to pass laws over the objection of the states?
The problem with some laws today isn’t so much that they are passed over the objection of the states; it’s that they are passed contrary to what the Constitution clearly says and was intended to mean by its authors. Congress has been aided in that process by some court decisions that overturned more than a century of precedents that had appropriately applied the Constitution. For example, based on more recent court decisions, Congress now misapplies the Commerce Clause to regulate activities that exist solely within one state despite the fact that such laws are contrary to what the Constitution authors intended. The Texas Plan doesn’t change Congress’ authority (and the limits on it) as written in the Constitution. What it does change is that it renews our national commitment to obey the law and live within the confines of it.
Under existing constitutional law, do states have any legal right, as argued by the chief justice of Alabama, to refuse to comply with Supreme Court decisions on matters such as gay marriage?
Federal courts decide “cases” and “controversies” within the jurisdictional limits of Article III of the U.S. Constitution. Article VI, Paragraph 2 plainly says: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Just as plainly, the Supreme Court is bound to obey the terms of the Constitution as it is written, and the Constitution’s authors did not intend to empower unelected jurists on that Court with the authority to change the Constitution’s terms. Instead, the authors placed that authority in Article V.
How would you limit the scope of a constitutional convention to the issues it is supposed to discuss? What safeguards exist that would prevent the convention from rewriting the entire Constitution?
Article V specifies that any amendment proposed by a convention of states requires ratification by three-fourths of the states — that is, 38 states — before it becomes effective. Stated differently, just 13 states can block any amendment. It is fanciful to assume that 38 states would, or could, agree to a rewrite of the Constitution. The high number of states required to ratify an amendment is one reason why wholesale changes to the Constitution haven’t been made in the past — and won’t be made in the future.
Additionally, the Texas Plan calls for a convention of states limited to particular issues rather than an entire rewriting of the Constitution. Because state legislatures are responsible for calling a convention of states, the state legislatures have inherent power to limit, condition or even rescind their calls for a convention.
This approach is consistent with the issue-limited state and interstate conventions that were held at the time of our founding.
Lastly, it should be noted that the other way the Constitution can be amended under Article V is for Congress to initiate the process. It has done so many times but has never attempted to rewrite the entire Constitution. It’s fictional to assume that a state’s commissioners at a convention of states would attempt to do so either, especially considering the 38-state ratification requirement.
Is there a danger of unintended consequences in calling the convention, and how might the effort be structured to reduce that risk? Would, for instance, the statutory language passed by, say, Texas, have to be identical to language adopted by the other states? If so, how would Texas convince the other states to adopt the governor's language?
Two-thirds of the states (at least 34) should agree in advance on the substance of the topics to consider as potential amendments, but not on the final language of an amendment. For example, 27 states already agree, and have taken legislative action, to request a convention of states to consider a balanced budget amendment. The terms of that amendment have yet to be worked out. If seven more states can be added to that group, a convention of states can be called to frame the specific language for a proposed amendment that would have to be ratified by 38 states.
Both you and the late Chief Justice Marshall hold that the Constitution is super-ordinary, in that it is designed to be permanent except through the extraordinary means provided for its amendment. Given that reverence, it’s worth noting that inMarbury v. Madison, Marshall wrote that the Constitution vests the whole of the nation’s judicial power into one Supreme Court, and that “it is emphatically the province and duty of the judicial department to say what the law is.”
How does that interpretation square with your desire for the states to avail themselves of one of the means to change the Constitution if in doing so you would radically shift the balance of power away from the judiciary and onto the executive and legislative branches?
This question rests on several fallacious premises. First, Chief Justice Marshall was not suggesting that the judiciary has the power to dictate the laws that govern Americans. Instead, he was saying that the judiciary decides what the written law means in the context of particular cases. It certainly was not true at the time of Marbury that federal judges simply got to make up rules of constitutional law and force everyone to obey them. To take just one example, almost 60 years after Marbury, President Lincoln famously told the Supreme Court that he would not obey the ignominious Dred Scott decision.
Likewise, almost a century after Dred Scott, in 1953 Justice Jackson recognized: “We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final.” Justice Jackson was right that the Supreme Court is not infallible. Cases like Dred Scott prove that, as well as the need for Americans to be able to override Supreme Court decisions.
Second, Chief Justice Marshall and the Texas Plan agree that the Constitution, then and now, includes Article V, and that Article V empowers Americans to amend the constitution if needed. Now, just as at the time of Chief Justice Marshall, Congress can override a Supreme Court decision with an alteration to a law, a new law, or a constitutional amendment. In doing so Congress would be acting as representatives of the people. That has been part of the check and balance infused in our country from the very beginning. The Texas Plan strengthens that preexisting check and balance principle by giving the states a role, just as the Framers intended.
Third, your question seems to rewrite the predicate to your question to suggest that the whole of the nation’s power (not just the judicial power) is vested into one Supreme Court. Neither Marshall nor I believe that, nor do I think you do, either. You know as well as I, and Marshall, that the Constitution was intended to vest the real power in the country in the people who would elect representatives to govern their lives.
You call for an amendment that would require seven of nine justices to agree before any state or federal statute is overturned on the grounds that it violates the Constitution. This clearly weakens the third branch of government as it relates to other two. How is that in keeping with the vision the Founding Fathers had when they drafted the Constitution? How do you arrive at seven justices?
The Founders never anticipated that the Supreme Court would rewrite the Constitution to suit its policy preferences and then demand fealty from every citizen in the nation. That is why, for example, Alexander Hamilton (an ardent nationalist, by the way) said that the federal courts would be “the least dangerous branch.” That is why the Constitutional authors gave the power to govern Americans’ lives to the officials who are elected by the people and accountable to those people. The Texas Plan makes good on Hamilton’s promise that the judicial branch really is “the least dangerous branch” — not a super-tribunal of lawmakers unaccountable to the people.
I further answer your question with a question. Which clause in the Constitution provides that the number of Supreme Court justices needed to amend the constitution is only five of nine? Which Act of Congress does so? What rule or regulation can you find anywhere that supports your position that five of nine Supreme Court Justices can amend the Constitution? I’ll save you the time. The answer is none.
The only thing that comes close is Article V. It requires that three-fourths of states are needed to ratify a change to the Constitution. The founders wanted it to be difficult to amend the Constitution. They wanted it to be a force of the people rather than the act of just five officials. The founders’ vision is restored by requiring that same three-fourths super-majority requirement apply to the Supreme Court when it declares that other government officials misinterpreted the Constitution and enacted an unconstitutional law. Three-fourths of nine rounds to seven.
You propose that states be able to overturn federal statutes if a two-thirds majority of legislatures agree, and Supreme Court rulings could be reversed similarly. What’s to stop states from passing laws wildly at odds with our Constitution — say, to use a ridiculous example, the re-imposition of slavery? Other, less hyperbolic examples, would seem to proliferate. What would protect minority rights if a majority could reject any law it did not favor or overcome any impediment to laws it did favor?
First, your question suggests that the purpose of courts is not to apply the law but to protect minority rights. Surely you agree that the purpose of courts is to apply the law, not to apply a judge’s personal perception of minority rights. If the purpose of a court is to apply a judge’s personal policy perceptions rather than apply the law, then decisions will be determined by the views of the judge in office at the time the case gets to court. See for example Dred Scott. That is not how the Constitution is supposed to work.
Second, nothing in the Texas Plan gives states the affirmative power to enact any laws that violate the Constitution. Instead the Plan only gives states the authority to react when the federal government takes action that violates the Constitution.
Contrary to your question, which is premised on what you accurately describe as a “ridiculous example,” the plan is proposed to deal with real examples. And when you think about real examples, it is not as if the courts’ records are perfect. You speak of protecting minority rights. Were they protected by the Supreme Court in Plessy vs. Ferguson? It took more than half a century for the Supreme Court to correct that. The country had no other tool in place — like the Texas Plan — to try to correct Plessy. Or what about the Supreme Court’s decision in Korematsu, which upheld the constitutionality of putting Japanese-Americans in internment camps? Were minority rights protected there? Surely not. And by the way, no one (not even the modern Supreme Court) has overruled Korematsu. Giving the states an opportunity to overrule decisions like Korematsu thus would be more protective of minority rights — not less so.
Moreover, it is important to remember that the Constitution also protects minority rights outside the context of race. For example, the president is considering executive orders to regulate guns. Had he pushed it early in his tenure with Nancy Pelosi and Harry Reid still in place with 60 votes in the Senate, there would have been a real possibility that gun restrictions could be passed by Congress. The Supreme Court changes so rapidly, there’s little guarantee that next time it hears a Second Amendment case, that it will uphold Second Amendment principles. And what about minority rights when it comes to the Tenth Amendment? As my paper details, the Tenth Amendment is as much of the Bill of Rights as the other nine, and yet all three branches of government have practically ignored it.
In addition to protecting minority rights, the country sees more each year that a very small minority — just five people in robes — can dictate restrictions on and remove liberties from an overwhelming majority of Americans.
What of the Bill of Rights and its protections for individual rights to speech, association, religion? Under current law, the Supreme Court has the job of interpreting the First Amendment to see if it, for instance, prohibits a Texas statute that outlaws flag-burning or a local decision to bar the KKK from marching in Illinois. How would your proposed amendments affect the way the First and Second amendments work as we know them today?
Your question seems to misunderstand how the Bill of Rights is applied in modern America. Today, the courts apply it capriciously and according to the policy preferences of a handful of unelected jurists.
For example, last decade the Supreme Court issued a decision in Heller vs. District of Columbia and in McDonald vs. Chicago protecting Second Amendment rights in both cities. Just this year, however, the Supreme Court allowed a gun restriction decision to stand in a Chicago suburb. Next year, they could limit the Second Amendment even more. Who knows?
Part of the First Amendment concerns religion and religious displays. As you know, the Supreme Court decided in 2005 that Texas could display the Ten Commandments. How long did it take for the court to rule otherwise? One hour! The case argued immediately after the Texas case was a Ten Commandments display in another state. We won 5-4; they lost 5-4.
The First Amendment now is whatever five unelected judges decide it is. The Supreme Court decided in Citizens United that corporate speech must be allowed in politics but can be regulated. That decision overruled a Supreme Court decision from earlier in the decade and yet another decision from the prior decade. The Supreme Court can easily extend the Citizens United standard to ALL corporations. Alternatively, a new Supreme Court could easily decide that it got Citizens United wrong, and in taking it back also decide that NO corporation can engage in any political speech.
If that happened, you, of course, would be outraged. Your fellow Americans are equally outraged when their liberty is stripped away or altered by an unpredictable Supreme Court.
The First Amendment as applied today is far different than it was applied decades ago, even on virtually identical issues. The First Amendment didn’t change. A few judges changed. The same is true for the unaltered Second Amendment, Fourth Amendment, Fifth Amendment, Eighth Amendment, Tenth Amendment, etc.
As cited in the paper, the Supreme Court one year decided that states had standing under the Tenth Amendment to sue the federal government. A few years later it decided that the issue was too difficult to decide and disallowed standing.
How long have you been working on this proposal, and what made the time seem ripe to announce it?
To some extent I began thinking about the issues in this proposal when I was a judge. To a large extent I began to frequently confront these issues and deal with them myself as attorney general. For several years I have read and considered other proposals to address the challenges discussed in the paper. After the 2015 legislative session was concluded, I turned my attention to addressing the proposals more formally.
What are the practical steps to moving this proposal forward?
We have a lot of work to do. Some of that involves building coalitions in Texas in advance of the 85th Legislature’s arrival in January 2017. Some of that involves working with scholars and grassroots organizations around the country. And some of that involves working with policymakers in other states to ensure support for a convention of states. The most important thing is not the specifics of the proposals, it is the broader concept that the only pathway to achieving solutions to these challenges is through a convention of states.