Representative or Rogue?

Earlier this month, I concluded a column by suggesting that a constitutional amendment convention may be a way out of the mess many perceive we’re in. What mess? The kind Pew Research Center poll respondents had in mind when only 22% expressed significant trust in their government. This figure is an historic low.

Distrust of power is somewhat sewed into the American DNA. Still, our government is structured to minimize the need for such distrust. We are, after all, We the People. We govern ourselves. To distrust the government is to distrust me (a difficult, though not altogether impossible, proposition).

So how did Madison, Hamilton, Mason and the boys handle the prospect of a corrupt and/or unresponsive Congress? Article V of the Constitution and, more specifically, individual states’ rights to modify the nation’s foundational document. Ahhh, the division of powers beautifully described by the Constitution’s father, James Madison:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite…The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

And so they included a way for the states to initiate amendments to the Constitution: 2/3 of their legislatures could petition Congress for a convention which Congress is then compelled to call. 

This approach has never been used to its completion, though twice in the last 40 years we have come within one state legislature’s approval of the necessary threshold.

In the 1960s, 33 states petitioned for a convention on the topic of reapportionment (the Supreme Court’s requirement that each state’s congressional and legislative districts had to be roughly similar in population). In the 1970s and 80s, 33 states again petitioned for a constitutional amendment convention, this time to attempt to enact a balanced budget amendment.

According to the non-profit Friends of the Article V Convention, more than 700 applications have been filed by state legislatures over the years. All 50 states have filed them at one time or another. 

However, Congress has never interpreted the language of Article V broadly enough to call a convention in response to those petitions. And why would it? Such a convention would certainly craft an amendment(s) that would take power from its hands.

James Rogers in the Harvard Journal of Law & Public Policy cites a 2005 national Harris Interactive survey that highlighted the most popular concepts for a constitutional amendment. Most of the them would limit Congress’ reach (e.g., balanced budget, Congressional term limits, no federal unfunded mandates, etc.). 

Undoubtedly, the logistical realities of a constitutional amendment convention are left vague in the original document. Perhaps the first such amendment ratified should clarify the process by which states can exert their influence. Or perhaps we follow the 1787 model and pioneer our own way. Regardless, what’s most important is that the states and their citizens be heard.

Then we’ll know once and for all if expansive federal government growth has the stamp of the American people or if a rogue Congress needs reining in.

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