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Article V Simulation Proves That a Convention of States Will Not Restore State Sovereignty

Photo by World Travel & Tourism Council

On Tuesday, Governor Greg Abbott declared in his second State of the State speech that the Convention of States is an “emergency item” for the upcoming Texas legislative session. He noted that “for decades now the federal government has grown out of control, it has increasingly abandoned the constitution; it has stiff-armed the states; and ignored its very own citizens.” Governor Abbott has floated The Texas Plan which details a set of amendments that he would like to see passed by an Article V Convention of States.

Indeed the Convention of States Project intends to rectify the loss of state sovereignty by passing one or more amendments to the United States Constitution which would alter the relationship of the states with the central government. In September, 2016, 150 state legislators invited by the Convention of States Project met in Williamsburg, Virginia to participate in a simulation of an Article V Convention. This simulated convention proposed six new constitutional amendments that, while all beneficial, do not achieve the goal of recognizing and otherwise re-establishing the sovereignty of the states.

The proposed amendments constrain the federal government in the following ways:

  • Requires a super-majority of congress to increase the debt.
  • Forbids unfunded mandates on the states
  • Eliminates taxes on income, gifts, or estates and requires 3/5 of Congress to approve new taxes.
  • Clarifies the commerce clause to only apply to actual interstate commerce, not to activities which only transitively affect commerce.
  • Commercial activities performed entirely within the state cannot be regulated by the federal government.
  • Laws and executive actions can be overridden by 3/5 of the legislatures of the states.
  • Executive regulations that are opposed in written declaration by 1/4 of either house of Congress, it must be specifically passed by Congress.
  • Limits Representatives to six terms; Senators to two.

In 2012 the Supreme Court ruled that the Affordable Care Act was constitutional because of Congress’s power to tax and not, as widely predicted, because of their mastery over interstate commerce. As Chief Justice Roberts so aptly pointed out in the opinion, nearly any activity of the central government can be justified if the government has the power to tax. Thus, although it is inarguable that the Commerce Clause has been used over the past century as a bludgeon establishing federal domination over the states, limiting the expansive interpretation of the Commerce Clause would not be the rampart that we might suppose.

Likewise, while the provision that states can override federal laws and regulations appears to be a step in the right direction, in fact one must question why it takes more than a simple majority of state legislatures to override something that was passed by a simple majority of Congress or via fiat.

The elephant in the room, of course, is that the Tenth Amendment of the current Constitution already affirms that all power is possessed by the states except for the very few enumerated powers of the Federal Government. However, the mere existence of every federal agency and the dazzling maze of regulation renders the Tenth Amendment meaningless. The federal government intrudes on nearly every aspect of our life from light bulbs to car seats to healthcare, none of which are specifically enumerated. One must question why the Congress, Executive Branch, and Courts can be expected to honor new Amendments, when these institutions don’t honor the Amendments that already exist.

It is crucial to note that the sovereignty of the states is not conferred by the constitution, but is rather a truth that made the establishment of union possible. In fact, the sovereignty of the United States itself is merely the delegated sovereignty of the 50 constituent states. Just as a person cannot give away personal freedom permanently, the sovereignty of a people can only be delegated, never surrendered. Since Washington seems dedicated to ignoring this fundamental principle, and therefore will likely ignore whatever reforms that may come out of a COS, let’s hope that Governor Abbott will soon assign Texas independence emergency priority. Independence is the solution that deals with a rogue federal government in the only effective way possible: to take it out of the equation.

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