The States Lead to Amend the US Constitution

This commentary originally appeared in Breitbart.com on September 4, 2014.

Few episodes in our history have tried Americans' souls as much as the current crises of trust. When serial abuses of power become routine and fidelity to legislative duties and campaign promises is the rare excetion, it is natural for citizens to disrepect the entire law-making process under which the nation has consented to be governed.

Politicians are elected by majority vote, but only by a majority of the generally declining numbers of citizens who do exercise that right to vote. The elected lawmakers then usually enact law by majority vote, unless a sweeping statute like Obamacare is cobbled together by an even less respectable process like reconciliation. It is no surprise then that the process of selecting legislators and creating law seems ever farther removed from the people.

It is the Constitution that requires the courts, the legislators, and the president to keep faith with contractual guarantees of individual liberty and government accountability. Debates that center on buttressing the Constitution’s ability to secure America’s compact with government will re-inspire confidence in the entire process.

There is a mechanism by which citizens may petition for government reform — and it allows them to go even further to provide the Constitutional structure to guarantee it. Citizens may prevail upon their state legislatures to call for an Article V convention to amend the U.S. Constitution.

There are two avenues for amending the nation’s governing compact. The Founders provided that the Constitution may be amended by a two-thirds vote in Congress — or by delegates to a convention called for by at least two-thirds, or thirty-four, of the states. In either case, the amendment must finally be ratified by three-fourths of the fifty United States.

While there have been an estimated 11,000 attempts to modify the Constitution in over two centuries, the Constitution has only been successfully amended twenty-seven times. Each of the added amendments originated in Congress. Yet it is clear to Americans that the current Congress shows no interest in curtailing its power by amending the Constitution.

So it is left to the people to campaign for reinforcements to the Constitution, with initiatives like a Balanced Budget Amendment or a Regulation Freedom Amendment. The people are beginning to understand that they must push for these common-sense reforms through their state houses rather than lobby an uninterested Congress.

Admittedly there are rumbles of concern over whether Congress will try to co-opt an Article V convention delegation once thirty-four states call for it. Some wonder if a convention might be “hijacked” by supporters of an agenda counter to the mission to which delegates are tasked. Others are worried that efforts to bind delegates to a specific and closely defined measure may not withstand judicial scrutiny. This is uncharted territory and many questions will be resolved en route to an Amendments Convention.

Yet it is this very journey through debates and disputes over constitutional structure that is critically needed. In fact, historians have noted that the movement to an Amendments Convention may be more potent — and may have as much impact on government institutions — than the convention itself.

Three times in America’s past there were movements toward a convention that produced the policy outcomes — or what were expected to be the results — of an actual Constitutional Amendment. When states mobilized to call a convention for passage of the Seventeenth Amendment (albeit one of the chief reasons that constitutionalists say America is now in crisis), the Senate realized the inevitability of the measure and moved to pass it to the states for ratification in 1912. Although President Reagan was lobbying the final state for an Amendments Convention to install a Balanced Budget Amendment, Congress moved to disrupt Montana’s decision by passing the Gramm-Rudman Act. Finally, the women’s equal-rights movement arguably accomplished as much by organizing to adopt the (failed) Equal Rights Amendment as it would have by actually passing the amendment.

Jonathan Turley, a center-left progressive Constitutional law scholar, warned the Congressional Judiciary Committee that America is sitting by “without a whimper of regret or opposition” while Washington, D.C., consolidates ill-gotten power. Scholar Gerard Magliocca calls just the movement toward an Amendments Convention an act of “brandishing the ultimate weapon.” It is time that Americans considered whether it is time to leverage the “weapon” of an Amendments Convention to reassert government of the people, by the people and for the people.

Karen Lugo is Director of the Center for Tenth Amendment Action at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.