Modern America continues to wage heated culture wars — over abortion, same-sex marriage, religious liberty, systemic racism, voting rights. But, below the surface of those highly visible conflicts, there continues a quiet but deeply serious and very detailed culture war of another sort. The goal of those most actively involved in this campaign is to reshape the American government into a states’ rights paradise, peeling back many of the powers now centered in Washington.
If it were to succeed as grandly as its most determined proponents seem to wish, America could see governmental power transferred back to the state legislatures to an extent not seen since the Articles of Confederation, that flawed experiment among the original 13 states that collapsed 233 years ago. The jealous independence of those sovereign states made the Articles unworkable, and led to the drafting of the United States Constitution.
A campaign like this, which has echoes going back to the earliest days of the nation under the Constitution, is built around one of the few constitutional clauses that remain unused to this day. That is the provision in Article V that empowers state legislatures to ask Congress to call a new convention to propose constitutional amendments. If summoned, it would be the first such gathering since the original meeting in Philadelphia in 1787.
The most likely threat foreseen by critics of such a conclave: there is nothing in the Constitution, nothing in American history, and nothing in current government arrangements that would keep it in check, to prevent a civic disaster. The late Justice Antonin Scalia once remarked: “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
The Constitution has been amended 27 times in its history. Every one of those was proposed by Congress, using its own authorization under Article V to start the process. Congress can do so by a vote of two-thirds of each house to approve a proposed change; it then takes the votes of 38 states (three-fourths of all of them) to ratify an amendment and formally put it into the Constitution. The unused alternative in Article V permits two-thirds of the state legislatures (34 of them) to ask Congress to call a convention to draft amendments; any changes again must be ratified by 38 states.
The Constitution gives no preference to either Congress or the state legislatures in this process, but the state legislature alternative simply has not worked out, in several tries over the years.
States’ rights advocates, in fact, are not the only ones across the nation who want a new convention. Even some liberal activists do, too, for very different reasons (for example, a group known as WolfPAC wants a way to curb big money in election campaigns). But, at the present time, the most organized efforts appear to be coming from people and entities devoted to the cause of enhancing the authority of the state legislatures.
One of the goals of some in this movement, for example, is a constitutional amendment that would give legislatures in 30 states the power, acting together, to “abrogate any federal law, regulation, or executive order.” Another goal: to repeal the 16th Amendment, which authorized the federal income tax, and to require more than a simple majority in Congress to increase federal taxes.
Those, in fact, were among the proposals that emerged when 137 individuals met five years ago in Virginia’s Colonial Williamsburg for a “Convention of States Simulation.” It was arranged by a group, the Convention of States Project (COS), which claims to be the largest caucus of state legislators from across the nation.
That Project, along with the deeply conservative American Legislative Exchange Council (ALEC), appear to be the most energetic groups now pressing for a new constitutional convention. Both rely heavily upon the research and writing of a Montana constitutional lawyer, Robert G. Natelson. He wrote the rules for the Williamsburg event, had a major part in writing an Article V “Pocket Guide” distributed by the COS Project, and wrote ALEC’s “Article V: A Handbook for State Lawmakers.”
Although much of the rhetoric in such publications speaks of “the people” recapturing governing power from Washington, Natelson is tightly disciplined in keeping his focus on state legislatures. He argues, for example, that the alternative approach in Article V was explicitly designed to be open only to state legislatures, and that state legislatures would keep the delegates who attend the convention under tight restrictions to assure that a “runaway” convention would not occur.
There are definite signs that strong opposition by liberal advocacy groups, such as the League of Women Voters, the AFL-CIO, Common Cause and MoveOn.org, has from time to time stalled the effort, and may be a restraining influence now. Such groups have repeatedly issued dire warnings that, once a convention of states started work, it could not be held in check by Congress, the courts, or by the Constitution itself.
Those opposition efforts probably had a role in persuading three state legislatures – in Maryland, New Mexico and Nevada – to withdraw their earlier calls for such a convention.
Needing the support of state legislatures in 34 states to even raise the issue with Congress, the new convention campaign’s fortunes have waxed and waned in recent years. No official organization keeps a tally on how many states now support the idea, but there appear to be between 15 and 18 legislatures that have formally embraced it.
In direct response to the opposition, the literature of both the COS Project and ALEC has grown quite defensive, especially in attempting to counter the claim that such a convention could not be prevented from ransacking the entire Constitution.
Those groups’ intellectual guru, Robert Natelson, contends that legislatures would have to agree on closely similar language in proposing a convention, that Congress could refuse a “call” if the effort were not well coordinated, and that the federal courts would back up congressional hesitancy about summoning such a conclave. And he also stresses that any proposed amendments would still have to get ratified by 38 states, and it would be up to Congress to choose the ratification method.
On each of those points, critics of the idea strenuously disagree.
Much of the public discourse on the controversy, on both sides, is carried on largely without appearing regularly in the headlines; the back-and-forth at present seems mostly to be a kind of academic exercise. The League of Women Voters has lamented that the new convention idea is “the most dangerous thing that no one is talking about.”
The controversy may only surface, and become prominent, if the time ever comes that advocates are able to go to Congress with a claim that they do have 34 legislatures ready for a convention to be summoned. That surely would get the nation’s attention.