The proposed lawsuit is based on the fact that there are hundreds of outstanding calls for an amending convention, far more than the 34 constituting two thirds of our 50 states. The complication is that most of these applications specify a particular subject for the amendment(s) to be proposed at the convention. Can a call for a convention to propose an amendment mandating a balanced federal budget be aggregated with one to allow state legislatures to be apportioned on a basis other than gross population (the two most common topics of calls in the last half century)? The lawsuit will argue that a call for a convention is a call for a convention, and the subject matter designations in the state applications should be ignored.

This would not be the first time this argument has been tried. In 2000 and 2004 Article V activist Bill Walker filed similar lawsuits, which were all dismissed by the courts on the grounds that the determination was to be made solely by the Congress. It is not clear how the new lawsuit would try to work around these precedents. One strategy may be that the promoters of the new lawsuit are looking to have it brought by a state, which jurisdictionally would have a stronger standing than Bill Walker as a private citizen.

Regardless of the fate of such a new lawsuit to force Congress to call a convention under Article V, it raises again the issue that the Framers clearly intended that the states as well as the federal Congress be empowered to initiate amendments to the Constitution, yet the procedures of Article V have proven inadequate to realize that intent. Even if an Article V convention were called, the absence of any agreed procedures, or agreement on how to agree, would mire the effort in irresoluble risks and uncertainties.

The point of Article V was that the Framers recognized that there would be a need to revise and update the Constitution as time and experience showed. Shouldn’t we apply the same logic to Article V itself? The half of Article V intended to enable states to initiate amendments has proved completely ineffective. Rather than expend endless resources on long-shot lawsuits and a risky and uncertain convention concept which is outside the American people’s experience, why not use Article V to reform Article V itself? The text of such a reformed Article V can be found here on this website. This “Amendment Amendment” provides clear unambiguous procedures familiar to all Americans to enable them, acting through their states, to be the final arbiters of their Constitution’s meaning.

To a fair amount of publicity, Texas Governor Greg Abbott has just released a comprehensive proposal to amend the Constitution to restrict the power of the federal government, a power which in the last hundred years has grown far beyond its original constitutional bounds. The idea that only the power of constitutional amendment can permanently constrain the federal leviathan is not new. Mark Levin argued the same in his 2013 bestseller The Liberty Amendments, and many conservatives have been trying to organize such a campaign for years. However, all of these efforts suffer from a fatal strategic flaw, which makes it politically impossible to even launch such a campaign. This is that they all rely on the never used provision of the Constitution’s Article Five authorizing a convention of states to initiate constitutional amendments. Unfortunately, no such convention has ever been held in our history, nor is one ever likely to occur. Fortunately, there is an alternative way to harness the amendment power, an approach which is also politically feasible even in our current divided political environment. This is to revise Article Five to permit the states to amend the Constitution without having to go through the archaic and unworkable mechanism of a convention.

First, let’s see why the convention of states will not work. It will take 34 states to call a convention. Superficially the situation looks promising, with the highest number of Republican state legislators since 1920 controlling 67 of the 99 state legislative chambers. However, even with the largest number of Republican state legislators in almost a century, the convention drive still comes up short. Republicans control the governor’s office and both houses of the state legislature in 25 states (including Nebraska, where the unicameral legislature is technically nonpartisan but de facto Republican). Democrats only have state-wide control in seven states and there are 19 states where state government is split. Looking only at state legislatures, Republicans control both houses in 31 states (including Nebraska), Democrats control both houses in only 11 states, and eight states have a split in control between the two state legislative houses. However, the 31 states where Republicans control both houses of the state legislature, only three short of the 34 states necessary to call a convention, becomes a far larger shortfall when one considers several factors:

Governors may have a veto. In a 1798 case the Supreme Court ruled that the president did not have to sign a constitutional amendment for it to become effective. However, there has never been a ruling whether a state’s governor would have to sign a state legislature’s call for an Article V convention (or have the right to veto it), and prominent constitutional scholars have argued that gubernatorial approval would be required for a convention call. If that is the case, then the 31 state number falls down to the 25 states with complete GOP control. One can argue the point either way, but it is almost certain that there would be long drawn-out lawsuits to decide the question in every state where a Republican legislature issued a convention call which was opposed by a Democrat governor.

Not all Republicans will support a convention call. Even in the conservative movement there is substantial opposition to the idea of a convention, led by the estimable Phyllis Schlafly. Leading conservative jurists like Justice Antonin Scalia have also expressed reservations about an Article Five convention. Further, while no one would question Ms. Schlafly or Justice Scalia’s credentials as constitutional conservatives, sadly not all Republicans are true constitutional conservatives. Whether because of principled concerns like those of Phyllis Schlafly or Justice Scalia, or RINO disinterest, one cannot assume that all of the Republican state legislatures will bestir themselves to join in a call for a never before used Article Five convention. And the 31 or 25 state number declines further.

No Democrats will support a convention call. If the 34 state threshold cannot be met even with historically high Republican control at the state level, the only solution is to get some Democratic support. However, if the purpose of the convention is to limit the power of the federal government, what contemporary Democrat is going to support that? Democrats might support an open-ended convention free to also propose amendments increasing the power of the federal government, but then any convention would degenerate into a media circus dominated by leftist law professors, wasting the efforts of constitutional conservatives to bring it about.

There is an alternative — direct state action without a convention. So, do we just give up hope on using the amendment power to push the federal government back into its original constitutional constraints, constraints which an imperial federal judiciary has been ripping apart for 70 years? Clearly the Framers contemplated that amendment of the Constitution would be necessary and appropriate. That is why they included Article Five. And equally clear is that they intended that the states should be able to initiate amendment proposals just like Congress. Nonetheless, to date all 27 amendments have been initiated in Congress rather than the states.

The problem is the convention itself. Hastily enacted on the second to last day of the 1787 constitutional convention over James Madison’s strong objections, this archaic mechanism was perhaps a sensible way for the states to get together in an era of horse and sail, but is completely outmoded in today’s world. And, even if the impossible 34 state threshold for calling a convention were met, it would be a procedural nightmare tied up in litigation for years (see here). For example, if it tries to follow precedent and have one vote for each state, it is certain to be challenged under the Supreme Court’s “one-person, one-vote” cases. This issue would go to the Supreme Court, which would bolix the start of the convention for years. (How can you have a convention without knowing how the votes are going to be counted?)

The solution is to eliminate the requirement that the states act through a convention to initiate amendment proposals. Mark Levin proposes such a step in chapter 9 of his book The Liberty Amendments. My similar but slightly more complete proposal, the Amendment Amendment, can be found here. Under the Amendment Amendment, any five states could launch an amendment proposal without having to call a constitutional convention. With no convention, there would no chance of a “runaway” convention so feared by conservative convention opponents. And, most importantly, there would be a path for constitutional conservatives to enact amendments restoring the original constitutional limits on federal power without having to go through Congress at all.

Of course, either Levin’s proposal or the Amendment Amendment would have to be enacted the old fashioned way. How does one get two-thirds of each house of Congress to approve a proposal which returns control of the Constitution to the people? And, as with a drive for a convention, even if all the Republicans in Congress supported it, Democrat votes would still be needed. Here is where Levin’s proposal or the Amendment Amendment are superior to the convention approach. They are content-neutral. Liberals could use a reformed amendment process to launch their own proposals. This issue is particularly lively on the Left these days because of the desire to reverse the Citizens United decision.

While constitutional conservatives (and most of those 67 Republican state legislatures) would oppose any effort to gut the First Amendment, a temporary coalition with liberals to force Congress to enact a content-neutral proposal like Levin’s or the Amendment Amendment could work. As never before, there is intense interest in the subject across the political spectrum.  With a public outcry from both the left and the right, members of Congress would vote for it just to shut up the voters. Congress would know that this opens up an end run around it. However, members of Congress have short time horizons, and would vote for amendment reform because it is only procedural, and would not commit them to any particular amendment. Do something popular that actually doesn’t do anything right away? That’s right up Congress’ alley! Since it would give states legislatures a significant new role, ratification by the states would follow quickly.

Then we could get right to the business of enacting needed constitutional amendments. All the work and resources devoted to calling a convention to no avail could then be directed instead to actually passing amendments, such as proposed by Governor Abbott. By offering a real chance of enacting amendments, this reform would galvanize the grassroots, and could restore our republic in a time frame which would probably find an Article Five convention drive still looking for 34 states, or tied up in the courts.

Finally, this is not an exclusive “either-one-or-the-other” proposition. Constitutional conservatives can push for both an Article Five convention and Article Five reform simultaneously. In fact, given the daunting arithmetic facing a convention call, it would be strategically wise to pursue an alternative in parallel with the elusive quest for 34 states to call a convention. We are all suffering under a massive centralized leviathan which has utterly betrayed the Framers’ original vision of a limited federal republic. The Framers created the amendment power in part to give the people a means to prevent that. We should use every tool possible as soon as possible to carry out that mission.

Conservative criticism of the idea is largely based on concerns that any such convention will fall under the influence of leftist legislators and law professors, and propose amendments which would increase rather than decrease the power of the federal government.  While such amendments could still be stopped by defeating them in 13 states, they would waste all of the effort and resources invested in such a convention.   However, an even more certain problem with a state-called convention would be the one Madison pointed out at the 1787 convention – Article V’s lack of procedures, or of any method to determine procedures, a problem which would make such a convention unworkable.  These procedural problems are detailed in an article I have posted online under the title, To Originate The Amendment of Errors: Reforming Article V to Facilitate State and Popular Engagement in Constitutional Amendment.

To give one example, how will votes be allocated at the convention?  The default position would be state equality as at the 1787 convention, but many will object to that as a violation of the Supreme Court’s one-person, one-vote cases, and demand some allocation of votes proportional to population.  Both would have colorable arguments, and would make it certain that any state-called convention would be tied up in litigation for years as this and other procedural issues made their way up to the Supreme Court.  If you can not decide how to count votes, you can not do anything at a convention.

The solution, as elaborated in To Originate The Amendment of Errors,  my short book Are We The People? (described here), and on this blog, is to first adopt one of Levin’s and others’ suggestion to amend Article V to allow states to initiate amendment proposals without having to go through the untried, unworkable and archaic mechanism of a convention.  My proposal for such an Amendment Amendment would permit any five states to launch an amendment proposal without all the labor and risk of calling a convention.  As there would be no convention, there would be no chance for a “runaway” convention.  Instead, everyone would know exactly what they are voting on upfront.  In this way, grassroots groups could invest their resources directly in promoting their amendment proposal on the state level without ever having to go to Congress or incur the expense and risk of a national convention.

It is quite arrogant of Professor Levinson to describe a document which has served and endured for 225 years as imbecilic.  But he is not alone.  In this criticism he renews the complaints of progressives since Woodrow Wilson frustrated by their inability to get the Founders’ convoluted tri-partite federal government structure to act decisively and vigorously to address the many problems they are sure the federal government can solve.  Fortunately, Professor Richard Epstein has written an excellent rebuttal to Professor Levinson, pointing out how many of our modern problems began precisely because in the early 20^th century the Supreme Court allowed the federal government to breach its constitutional bounds and expand far beyond its original constitutional functions.  Professor Epstein goes on to show how many of Professor Levinson’s proposed constitutional innovations would just make matters worse.

What leftists like Professor Levinson can not, or will not, recognize is that any expansion of a government’s power must necessarily detract from the liberty of its people.  That is the very definition of government.  It is the institution which people in society permit to curtail their liberty in order to benefit from living in society.  As Professor Epstein notes, we “should not defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation.”  The Founders’ brilliant insight was to create an institutional framework for reaching that middle ground.  They could not see into the future to know exactly what the appropriate level of government power should be.  But they could create a balanced government system which would make it difficult to expand government power without the consent of many different political actors.  This would protect the interests of liberty against the forces always pushing to expand government power.  Professor Epstein concludes that the “original Constitution was not imbecilic.  On many questions, it reflects a level of wisdom that has unfortunately been lost today.”

However, there is one critical point where both professors shoot wide of the mark.   The main point of Professor Levinson’s piece is that the Article V amendment process is now moribund.  He writes that the “last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms.”  I would disagree – the last truly significant constitutional change was actually the 19^th Amendment, added in 1920 to extend the franchise to women in all the states!  He continues that the “near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.”

Professor Epstein’s response shows that there is in fact much to be concerned about.  In the absence of a workable amendment process, the Supreme Court has usurped that function and, as well summarized by Professor Epstein, in decisions beginning even before the Roosevelt New Deal Court created a situation where “today’s working Constitution is quite different from the sparer government regime put in place by the original Constitution” and this “increased role of the government in the economy has had a negative effect on American society.”

The issue is, what do we do about it?  Professor Epstein and I had a brief exchange on this during a recent Federalist Society teleforum on his new book, Design for Liberty: Private Property, Public Administration, and the Rule of Law,  Professor Epstein first noted that none of the current Supreme Court justices, including the “conservative” ones, had shown any inclination to reverse the last 80 plus years of Supreme Court precedents which have effectively amended the Constitution to allow this vast expansion of federal power.  When I asked if he could craft a constitutional amendment to annul these decisions he assumed I was suggesting an amendment which would be initiated by a second constitutional convention under the current Article V as advocated by Professor Levinson.  Professor Epstein expressed his opposition to such a convention because “Sandy Levinson would run it.”  (I agree with Professor Epstein here, having written in an earlier post that one reason to oppose the convention method of constitutional amendment is because law professors and politicians would control it.)       

Professor Epstein stated that his approach was to build the normative case for returning to limited government.  This is a worthy pursuit and I pray for his success in persuading many others.  But even if he is successful, by what method would the return to a more limited government be implemented?  To restore something approaching the pre-New Deal limited federal government would require overturning dozens, maybe hundreds, of Supreme Court precedents.  If even conservative stalwarts like Clarence Thomas and Antonin Scalia will not do this, how will it be achieved?  Will we rely on politicians to simply vote to restore limited government?  To think that this could be accomplished simply by the normal political processes belies all experience.  And even if one President or Congress rolls back the federal leviathan to some extent, that work can easily be reversed by the next set of politicians to promise that Nanny Sam will fix everything.

The only way to restore some form of limited federal government is to turn to the ultimate power the Founders gave us – amendment.  Only amendment can effectively overcome the decades of hoary Supreme Court precedents which underlie the federal leviathan.  These would not be radical amendments of the type Professor Levinson advocates.  Instead, these would be amendments simply restating and re-affirming the original constitutional limits on the federal government.  Of course, the federal Congress will not initiate amendments limiting its own powers.  Therefore we must reform the amendment process to enable the states to initiate amendments without having to go through either Congress or the unworkable and outmoded mechanism of a convention.  This will open the path for grassroots constitutionalists to restore the constitutional balance Professor Epstein advocates.  Such an “amendment amendment” proposal can be found here.

While I am enormously sympathetic with the sentiments behind this approach, let us analyze whether that really would be the most effective means of restoring the integrity of the Constitution.

Let us assume that the enormous political task of getting two-thirds of the state legislatures to call for a convention has succeeded.  This will be big news, attracting huge interest.  But, who will go to this convention?  If historical precedent is followed, the delegates will be selected by the state legislatures.  It is also possible that Congress will decide who the convention delegates will be.  They might also be elected, in which case the candidates for the convention will likely come from the established political parties.   In any case, are the politicians going to choose stalwart defenders of the original Constitution?  Perhaps some.  However, it is far more likely that they will choose themselves.  What lawyer/politician would not want to go the second constitutional convention?  Of course, for appearances’ sake, the politicians would name or nominate a few non-politicians.  And what kind of non-politician is most likely to be selected?  Why “experts,” of course.  And who are considered experts on constitutional law?  Law school professors.  And, in case you did not know, law school professors are the leading enemies of applying any original meaning to the Constitution.

So what would happen at a convention?  Leftist law school professor delegates would press for amendments which would move the government even farther away from the original constitutional structure, and deal-making politician/delegates would accommodate them, because that is what politicians do.

Some have argued that the delegates could be bound by the states’ call for a convention to only consider certain pre-established amendments.  However, once the second constitutional convention was convened, one would be hard-pressed to deny the introduction of new amendments in light of the precedent of the convention of 1787, which far exceeded its original instructions to simply revise the Articles of Confederation.  Further, the egos of the lawyer/politicians and law school professors who would make up such a convention would not permit them to just stop at voting on pre-established amendment proposals.  Even if many of the politician/delegates were pledged to do so, it is inevitable that some states’ proposals would differ, and that “resolving” those differences would open the door to the new proposals pushed by the leftist law professor and politician delegates.

Finally, even if a second constitutional convention dominated by politicians and law professors produced amendments which actually restricted federal power and restored original constitutional meanings, they would still have to be approved by three-fourths of the States.  It would only take leftist political control of one-fourth of the States to block their ratification.  In contrast, the Supreme Court changes the Constitution by a simple five-vote majority.

This three-fourths hurdle is higher than any other constitutional amendment procedure in the world.  No State of the United States nor any democratic foreign nation requires a three-fourths vote to amend its constitution.  We must remember that the United States Constitution was the first written national constitution in the history of the world.  Subsequent constitution writers have realized that if one makes a constitution too hard to amend there will be either change by revolution, or by subterfuge.  The latter is what has happened to our Constitution, as the Supreme Court has surreptitiously rewritten the Constitution.  The framers did not foresee that the Supreme Court would arrogate to itself the right to wantonly change the Constitution, and that the amendment process would be our only hope of restoring it.   Any meaningful amendments initiated by a convention would have to surmount this vastly disproportionate three-fourths barrier.

The Amendment Amendment will facilitate the amendment process in several ways, all while preserving the principle of super-majority approval of changes in our foundational document.  

First, it reduces the hurdles slightly, from two-thirds vote of Congress to five-eighths, and from three-fourths of the States to two-thirds (that’s 34 States out of 50 rather than 38).  Super-majorities are still required, but super-majorities which are more achievable in our nation which is far larger and more diverse than the framers ever could have imagined.

Second, and most importantly, it restores to the States the realistic ability to initiate amendments. Why did the framers require that the States meet in convention to initiate amendments?  The answer is simple practicality.  In an age when it took weeks for an exchange of correspondence between one part of the country and another, getting together in a convention was the only practicable way for the States to produce amendment proposals.  However, in our age of instantaneous electronic communications and jet air travel, there is no longer any need for States to gather in a convention.  The “amendment amendment” allows a small group of states to initiate a constitutional amendment proposal.  Proposed amendment language could be easily worked out without having to meet in a formal convention, although informal meetings could still facilitate matters.  Congress could also approve any state-initiated amendment (by five-eighths vote) but that could occur at any time while the States were approving the proposed amendment(s).  The amendment(s) would become effective whenever the ratification requirements were met, no matter in what order they occurred. (Of course, Congress could also still initiate amendments, but would no longer have an effective monopoly on that function.)

Third, Article V does in fact currently provide that amendment proposals initiated by a convention called by two-thirds of the States can be ratified by three fourths of the States without congressional approval.  The “amendment amendment” also retains this possibility but eliminates the now unnecessary convention.

These amendment procedures will solve the problems with the convention approach discussed in the previous post.  Amendment proposals would not have to go through the States twice, once to call the convention, and again to be ratified.  The amendment(s)’ initiation, by how ever many States participated to start, would also count as their ratifications.

Most critically, the content and wording of the amendments could be controlled.  Rather than being subject to the vagaries of an ego-driven convention of politicians and law professors, the amendment(s)’ sponsors could precisely draft the proposals to strictly accomplish the restoration of the Constitution’s original meaning.  Of course, the amendments would still have to be approved by state legislators.  However, here is where the key difference emerges.  Unlike a remote national convention, or our special-interest dominated federal Congress, state legislatures can really be amenable to grassroots activism.  And it is in such grassroots activism that the real energy for restoring the Constitution is to be found.