Federalist2

Constitutional scholar and author Akhil Reed Amar doubts the Article V constitutional convention proposed by some “can fundamentally solve the genuine issues over which we have some deep divisions in America.”

Baylor Law School photo — Nick Teixeira

One idea that unsettles and even terrifies many conservatives and liberals and excites many others is the drumbeat for an Article V Convention of States to forge constitutional amendments demanding the federal government balance its budget, rein in its powers and, most importantly, force term limits on U.S. representatives and senators. Texas Gov. Greg Abbott has pushed this idea hard, including nine of his own amendments.

As the governor told state lawmakers during his Jan. 31 State of the State Address while advocating Texas’ formal support for an Article V Convention of States, he even wrote a book about it. (The book has been endorsed by everyone from Republican brainiac Newt Gingrich to martial arts star Chuck Norris.) Such a convention also is a passion of state Sen. Brian Birdwell, a Granbury Republican whose district includes Waco and who has authored a bill calling for just such a gathering. Birdwell says it’s necessary because of Washington’s “refusal to uphold the Constitution and recognize the rights of the individual states . . . a failure that spans both political parties.”

Basic idea: States would effectively bypass Congress if enough state legislatures (34 of them) demand a convention where delegates from states can propose amendments to the U.S. Constitution. Ratification of proposed amendments would still require 38 states — not an easy hurdle for anything divisive but sure possible with such popular proposals as, say, term limits. Interestingly, none of Abbott’s proposed amendments call for federal term limits, instead focusing on such matters as restraining the federal bureaucracy and allowing states under certain conditions to override federal law.

‘Risk worth taking’

The advocacy group Convention of States cites a 1979, pre-Reagan era discussion with then-law professor Antonin Scalia dismissing fears about an open Article V Convention of States on the theory anything absurd proposed would stand little chance of ratification nationwide — a debatable statement given today’s Trump era: “I think that risk is worth taking. It is not much of a risk. Three-quarters of the states would have to ratify whatever came out of the convention. Therefore, I don’t worry about it too much.”

Left to speculation: What U.S. Supreme Court Associate Justice Scalia might have thought of Abbott’s amendments undermining the power of the high court, including allowing two-thirds of states to override a Supreme Court decision.

And there’s no telling how latter-day delegates to a latter-day constitutional convention in our increasingly anarchic times might bungle the job, especially if the gathering inspires delegates to shed limits prescribed by their home states. They might then begin adding all sorts of amendments that compromise people’s liberties — too often the Achilles’ heel of states’ rights.

Indeed, the convention idea has sparked stiff opposition by right-wing groups such as the Texas Eagle Forum and John Birch Society, which understandably fear a convention could wind up spinning out of control. No less than Barbara Harless of the limited-government North Texas Citizens Lobby highlighted grim realities about even Republican state legislators who might serve as delegates.

“There are hundreds of special-interest groups out there that have been dying to do exactly what we are proposing to do with this bill,” she said in testimony against Birdwell’s Article V convention legislation this month. “It’s a Pandora’s box. All special interests will be at the table. It won’t just be 96 percent of Republicans and, again, the precedence was set in 1787 with the Philadelphia convention.”

Harless stresses the same point Scalia raised but with far more concern. The 1787 constitutional convention ostensibly was held to strengthen creaky Articles of Confederation, but delegates instead focused on writing a new constitution. (Incidentally, “federalists” such as Washington, Hamilton and Madison championed a strong central government; “anti-federalists” who opposed the Constitution championed states’ rights. “Federalism” later picked up wildly different connotations.)

During this same Senate State Affairs Committee hearing at which Harless spoke, Sen. Birdwell insisted the broader goal justified the risk: “I understand the trepidation and certainly respect it. My trepidation is we’re not going to gain federalism [in the sense of states’ rights] in the proper balance without an Article V convention because the Congress has become its own customer.”

Birdwell even participated in a mock Article V Convention of States held in Colonial Williamsburg last year. He acknowledged that, in meeting with delegates from other states, solutions to various issues differed sharply: “What we agree on is who should make the policy decision.” In other words, the states.

Even the 179-year-old Philosophical Society of Texas — a group of Texans strictly limited to 200 business leaders, politicians and scholars who meet once a year to focus intently on one topic — got swept up in their own simulated Article V convention while meeting in Waco last weekend. Again, feelings ran strong.

Issues at the heart

Take, for instance, curmudgeonly (and fascinating) legal scholar Sanford Levinson, a constitutional critic who praises the Constitution’s magnificent Preamble — and laments that the rest of the founding document doesn’t measure up. The post-Civil War Reconstruction amendments (the 13th, 14th and 15th) fashioned by early-day Republicans make up for a lot of the Constitution’s shortcomings, he said, but not enough.

Levinson, who teaches at the University of Texas Law School, said he likes Gov. Abbott’s call for an Article V Convention of States while disliking most of Abbott’s proposed amendments. He also dismissed the Electoral College as “ridiculous,” the result of a desire to protect slavery; suggested life tenure for federal judges be abolished with 18-year terms instead ensuring Founders’ desire for a sufficiently independent judiciary (an idea now gaining in popularity); and pressed for ratification of constitutional proposals through direct votes of the people.

Term limits proved the chief focus of the society’s mock convention. Former Republican Congressman James Coyne, a Pennsylvania businessman who led a futile effort to force term limits on Congress a quarter-century ago, said however weak the Articles of Confederation were before the Constitution, they at least provided for term limits. Lack of term limits combined with self-serving redistricting engineered by politicians themselves — “gerrymandering” — ensure most federal lawmakers “can be elected over and over.”

Dallas attorney and former Republican state legislator Dan Branch warned term limits for Congress might render lawmakers less accountable to the public and empower “career administrators and bureaucrats” — a fair point. And Douglas Laycock of the University of Virginia Law School argued term limits could “eliminate experience, eliminate institutional memory” among lawmakers, leaving them most prudent in governance about the time term limits might kick in — another fair point.

To this, former Congressman Coyne vigorously pointed to Congress’ functioning now without term limits and the sprawling bureaucracy in Washington: “Does anyone think bureaucracy has not become more powerful in the last 50 years?”

During his lively appearance a day earlier at Baylor Law School, famed constitutional scholar Akhil Reed Amar of Yale Law School reminded students and faculty why any flurry of amendments might undermine the Constitution: “Do people in general love their state constitutions more than their federal constitution? Texans may be unusual — six flags and the Lone Star tradition — so you might think so. But in most states, including California, I don’t think most people would say the state constitution is more beloved than the federal. Second, with state constitutions, there have been a bunch of amendments, some of them good, some of them bad. Federal constitution: fewer amendments, almost no bad ones.”

He also echoed that other disturbing refrain — that today we lack the caliber of statesmen who forged the Constitution — many highly representative of the Age of Enlightenment, steeped in political theory, science and the humanities.

Amar, who also participated in the Philosophical Society of Texas conclave , did trot out an interesting idea regarding term limits that might eliminate the need for an Article V convention and the problem of present-day lawmakers refusing to curtail their own congressional tenures: a “sunrise amendment” that would put term limits into effect 20 or 30 years hence. The problem of self-interest is thus skirted and the Constitution is fixed — assuming you believe term limits are a critical fix.

The debate rages on as critics argue that the same state legislators in Austin voicing outrage over federal overreach are themselves guilty of micromanaging and costly intrusion into the affairs of cities, counties and school districts all across Texas. In this context, gauge the outcome of other legislation percolating in the Legislature: Republican Rep. DeWayne Burns’ HJR 73, which calls for prohibiting unfunded mandates from the state — “effectively tax increases handed down by the [Texas] Legislature on local families and property owners and implemented by proxy” — and tea-party Republican Sen. Don Huffines’ SJR 10, which calls for imposing term limits on state legislators.

Are our state legislators willing to take some of the same medicine they seek to serve others? Will the sun come up in the west tomorrow?