States May Check Federal Government with Constitutional Amendments
Louisiana’s Noble Ellington endorses Amendment seeking to “restore balance of state and federal power”
NEW ORLEANS, La. – Heightened concern with a lack of federal accountability may lead to the first state-initiated constitutional convention since the original ratification. In their efforts to shift the balance of power, a variety of organizations are working to bypass federal approval and amend the constitution directly.
State leaders have the authority (from Article V of the Constitution) to hold a convention and, upon ratification by three fourths of the states, amend the Constitution. However, uncertainty surrounding such a convention and the two-thirds threshold for initiation have prevented such a convention from being called. All 27 amendments to the Constitution have gone through Congress before ratification.
Momentum is building for that precedent to end. The Goldwater Institute, an independent, Arizona-based policy institute, has been publishing substantive research into how the constitutional convention process would proceed. And newly proposed amendments have received endorsements from numerous coalitions of state leaders, including the American Legislative Exchange Council, the Council of State Governments, the National Conference of State Legislators, and the National Association of Secretaries of State.
James Booth, cofounder of RestoringFreedom.org and a promoter the National Debt Relief Amendment, asserts that bipartisan support makes this a unique and opportune time for a convention. His amendment would place a check on federal deficits, and he anticipates that at least five states will pass supporting resolutions in their next legislative sessions.
“We’ve met with groups of Democrats. We’ve met with groups of Republicans… Both sides dislike the [federal] debt, but there’s a lack of discipline in Washington, D.C… Americans, and even our state legislators, realize that Congress is probably unable to address this. They’re addicted to debt.”
The proposed amendment reads:
“An increase in the federal debt requires approval from a majority of the legislatures of the separate States.”
The Madison Amendment seeks to address fears of a “runaway convention” by requiring that future constitutional conventions be constrained to a single issue. This would increase the likelihood of state-initiated conventions and has garnered bipartisan approval from prominent legislators. Noble Ellington, a state representative from Louisiana who recently switched to the Republican Party, is a notable endorser, particularly since he is the incoming chair of ALEC.
“ALEC is perfectly positioned,” says Ellington, “to work with the states on common-sense, conservative legislation that will protect citizens from the far reaching arms of the government.” With one third of all state legislators – nearly 2,000 members – ALEC is the nation’s largest nonpartisan, individual membership association of state legislators, advocating for the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.
“It’s always difficult to pass constitutional amendments, but based on what’s happening across the country right now and the concern of the people, I think these types of constitutional amendments may have a better chance than they have at any other time that I can remember.” In the case of Louisiana, Ellington believes the legislature will be favorable to constitutional amendments.
The Repeal Amendment, which would allow a two-thirds majority of state legislators to veto federal laws, has garnered national attention and was introduced into the Virginia House of Delegates in December with the support of the state’s governor, lieutenant governor, and attorney general. The Republican Study Committee of the U.S. House of Representatives, a coalition of 115 members, has provided further support at the federal level. Representative Bob Bishop (R) of Utah, founder of the committee’s Tenth Amendment Task Force, introduced the Repeal Amendment to the U.S. House of Representatives, albeit with a low probability of passing.
Matthew Spalding of the Heritage Foundation is one constitutional scholar who has doubts regarding a state-initiated convention. Since such a convention is yet to occur and not tightly defined in the constitution, Spalding describes it as a dubious process.
“The unknowns are extensive; it is not at all clear who controls the process; and it’ll probably be litigated all along the way. It may be one element of a strategy to threaten Congress to act, but the idea that we can and should actually hold such a convention – that it is an easy and pretty straightforward matter – is wildly mistaken and distracts us from the focus of achieving a constitutional amendment.”
Of the proposed amendments mentioned, Nick Dranias of the Goldwater Institute believes the National Debt Relief Amendment has the greatest likelihood of coming to fruition and making an impact. He sees 34 state resolutions within three to seven years as realistic. Already 49 states have their own form of balanced budget amendment, and he cites debt restraint as nonpartisan and nonideological.
His concern with the Madison Amendment is that it plays on the “erroneous notion” that the state initiated amendment process could lead to a runaway convention – “very harmful to our effort to legitimize the state-initiated Article V process.” Whatever were to be decided at a convention would still need three quarters of the states to ratify it. In the case of the Repeal Amendment, it places the burden on the states to veto, rather than the federal officials, who may simply duck vetoes by rewording legislation.
“There is no evidence whatsoever that the federal government will tie its own hands… In the long run the idea of states invoking their Article V powers—even more than any particular amendment idea—is what will produce the fundamental power shift away from Washington, D.C. that we need to preserve our Republic.”
Fergus Hodgson is the capitol bureau reporter with the Pelican Institute for Public Policy. He can be contacted at email@example.com, and one can follow him on twitter.