Constitutional Law, National, Rob Natelson, U.S. Congress, Uncategorized

Natelson: Reforming dysfunctional federal government; a how to guide

Most Americans have come to see the federal government as dysfunctional, or even abusive. For example, Congress is utterly unable to balance its budget. Although we recognize that deficits may be necessary in occasional years, Congress now runs huge deficits every year. In prosperity or recession, war or peace, the looming public debt grows and grows and grows.

Many members of Congress treat their positions as lifetime jobs. Citizen legislators have been supplanted by lawmakers who cling to their posts for as long as 50 years—and then pass their positions on to their children or other family members. For many members of Congress, including House Speaker Nancy Pelosi, Senate Majority Leader Mitch McConnell, and Senate Minority Leader Charles Schumer, almost their only job experience has been politics. They can hardly understand how the rest of us live.

The framers of the U.S. Constitution foresaw that such a situation might arise, and constitutional amendments might be needed to correct it.

And while the framers allowed Congress to propose amendments, the framers also foresaw that Congress might refuse to advance proposals to correct itself.

So they added to the Constitution a way for the people to bypass Congress. This is now the basis for a national reform movement. Advocates want to use the “bypass” to impose term limits on Congress and on the Supreme Court, trim federal power, and require Congress to exercise more fiscal restraint—maybe even balance its budget.

Here’s how the bypass works. First, the people ask their state legislatures to pass resolutions—formally called “applications”—directed to Congress. In this process the state legislatures act as direct representatives of the people rather than as part of state government. Formalities customarily imposed on state actions, such as signature by the governor, are not necessary.

The applications instruct Congress to call what the Constitution labels a “convention for proposing amendments.” If and when two thirds of the state legislatures (34) pass applications on the same subject matter (say, term limits), the Constitution requires Congress to invite each state legislature to send its designated representatives to a particular place at a prescribed time to begin deliberations.

A meeting of state delegations is traditionally called a “convention of the states”. It is a kind of diplomatic negotiation among states. Each state delegation has one vote. The convention elects its own officers and adopts its own rules.

This is not as complicated as it may sound. Convention of states have been quite common in American history, and the protocols are well known. The most recent met in Phoenix, Arizona in 2017.

Conventions of states (or, before Independence, conventions of colonies) have addressed all sorts of problems: Supplies for national defense, relations among the states, response to federal policies, unfair trade practices, and division of interstate waters. An 1861 national convention proposed a constitutional amendment to Congress.

The job of a “convention for proposing amendments” is, as the name implies, to consider and draft one or more amendments within its prescribed agenda. Thus, a convention charged with proposing a term limits amendment might draft a rule limiting members of Congress or 12 or 16 years each and Supreme Court justices to a single 20 year term. Or a convention charged with considering fiscal restraints might propose an amendment requiring Congress to balance its budget most years.

Once the assembly drafts its proposed amendments (or decides not to) it adjourns permanently. At this stage, its recommendations are still just proposals. To become part of the Constitution, they must be approved by legislatures or conventions in three fourths of the states (38 of 50). The Constitution requires Congress to decide whether state legislatures or conventions will consider the proposed amendment. In doing so, the legislatures or conventions serve as direct representatives of the people.

Over the 230 years since our Constitution went into operation, amendments have proved to be powerful instruments of reform. Our Bill of Rights was adopted in ten constitutional amendments. Abraham Lincoln proclaimed the end of slavery in most of the South, but it took a constitutional amendment (the 13th) to abolish it entirely. Constitutional amendments have protected minorities against state abuse (14th, 15th, and 24th), extended the right to vote to women (19th), and limited the president to two terms in office (22nd). On three occasions, we even used constitutional amendments to overrule Supreme Court decisions! (The 11th, 14th, and 26th.)

All these amendments were proposed by Congress rather than the convention “bypass” method.  But today Congress refuses to reform itself. So state legislatures are gearing up to use the bypass.

Most state legislatures (but not quite the necessary 34) already have passed applications for a balanced budget convention. Fifteen states have endorsed an application promoted by a grass roots movement called the Convention of States project. Their application would empower the convention to propose amendments in three areas: term limits, fiscal limits, and restraints on federal power.

As you might expect, special interests with ties to the federal government are not enthusiastic about the people intervening to reform the government. When faced with a similar situation in the 1960s and 1970s, opponents developed a “play book” of political soundbites to oppose a convention.

Like those seeking to discourage others from voting, the opponents’ playbook uses misinformation and fear. Opponents claim that an amendments convention (1) would be a constitutional convention, (2) could re-write the entire Constitution, (3) could stage a coup d’etat, imposing its changes on the country, and (somewhat paradoxically) (4) would be controlled by Congress.

All of these charges are false, and scholars researching the area have shown them to be false. Yet opponents, some desperate to oppose reform and others using the issue to raise money, continue to repeat them.

I recently published a book on the bypass process. It’s called The Law of Article V: State Initiation of Constitutional Amendments. It relies on over 300 years of historical records and court decisions to explain how the procedure works.

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2014).  A version of this article first appeared in The Epoch Times.

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