Wednesday, January 13, 2016

A dissenting right-of-center view on a convention of states

The idea of convening the states, per Article V of the Constitution, to put forth some amendments intended to wrest power from the federal level of government has a solid core of enthusiasts. After Mark Levin proposed it, some folks founded a formal organization, called Convention of States, that is active in several states, with field operatives meeting with state legislators and getting their fellow citizens to sign petitions.
The push recently gathered more momentum when Texas Governor Greg Abbott got behind it, as did Florida Senator Marco Rubio.
But consider the caveats Cato Institute legal scholar Walter Olson lays out in a Daily Beast piece today:

Note what this [Article V] does *not* say. It says not a word expressly authorizing the states, Congress, or some combination of the two to confine the subject matter of a convention. It says not a word about whether Congress, in calculating whether the requisite 34 states have called for a convention, must (or must not) aggregate calls for a convention on, say, a balanced budget, with differently worded calls arising from related or perhaps even unrelated topics. It says not a word prescribing that the makeup of a convention, as many conservatives imagine, will be one-state-one-vote (as Alaska and Wyoming might hope) or whether states with larger populations should be given larger delegations (as California and New York would surely argue).
Does Congress, or perhaps the Supreme Court, get to resolve these questions—the same Congress and Supreme Court that the process is aimed at doing an end run around? If the Supreme Court resolves them, does it do so only at the very end of the process, after years of national debate have been spent in devising amendments that we find out after the fact were not generated in proper form?


Justice Burger described the whole process as “a grand waste of time.” One reason is that after advocates get the process rolling by convincing two-thirds of states, or 34, itself a fairly demanding number, the amendments that emerge from a convention do not get ratified unless three-quarters of states ratify, or 38, a quite demanding number.
Put differently, it takes only 13 states to refuse to act to kill any of these ideas, bad or good, in the end. Sorry, Cenk and Marco, but so long as we have a nation fairly closely divided between Blue and Red sentiment, there will be at least 13 states skeptical of some systemic change so big that you had to go around the backs of both Congress and the Supreme Court to pull it off. If you’re a progressive who thinks the populist winds blow only in your favor, reflect for a moment on the success of Donald Trump. If you’re a conservative to whom radio call-ins resound as the voice of the people, consider that state legislatures confronted with the hard legal issues a convention would raise might turn for advice and assistance to elite lawyers (yikes) or even law professors (double yikes).
LITD is still sorting out its position on the matter, but Olson's observations are worth chewing on.

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