The Texas House is poised to decide the fate of Governor Greg Abbott’s emergency bill to call for an Article V Convention of States. In its Senate, Texas recently advanced SJR2 after heated debate. The Texas House passed a similar bill (HJR77) in the last legislative session.
At issue is whether or not Texas formally requests that Congress call an Article V Convention, which it is ostensibly obligated to do when at least 34 states (a two thirds majority of the current 50 states) apply for a convention. If a convention is called, it may originate new amendments to the Constitution which would be adopted if ratified by 38 states. Contrary to what is asserted by many, such a convention may only recommend new amendments–the fact that the convention agrees on constitutional changes does not make it law unless the states themselves concur.
Texas is not the only state debating an Article V Convention. In fact many states have applied to congress for a convention already, and many others are currently debating the matter. The Convention of States organization maintains a map reflecting their view of the current status here. Although the particulars vary depending upon what source is referenced, the most optimistic assessment from those in the movement say it only lacks the support of a few more states in order to hit the threshold required for Congress to call a convention.
In most other states, the debate revolves around whether or not the Federal Government has overwrought its authority on the states, and otherwise diminished, or even eliminated, the concept of state sovereignty and state power. In Texas, however, establishing that fact does not seem to be at issue. In fact, most here agree that state sovereignty is a historical concept and absolutely must be recaptured. Article 1, Section 1 of our Constitution demands it. For instance, The Texas Sovereignty Act does not appear to be overly contentious whereas in most other states similar language, like that emanating from Austin, might be unthinkable. Not here in Texas. We know that we should manage our own affairs: the question is how we get from where we are, to what we are legally entitled.
The argument for a Convention of States seems easy enough to follow: the federal government has overstepped its constitutional bounds and the states must use their constitutionally provided tools to reign them in via an Article V Convention. Pass some amendments that establish strongholds against federal power (i.e., term limits, limiting the commerce clause, requiring a balanced budget, prohibit bureaucracies from creating law, permit states to overrule SCOTUS decisions, etc), and voila! the Federal Government would again be in check, as it was during most of the first century of the Union.
Or would it?
The counter argument is equally simple. The Constitution already allocates almost all real power in the hands of the states. The Federal Government has blatantly ignored the language of the constitution and has turned the whole notion of the Bill of Rights on its head. Whereas all rights not specifically allocated to government were supposed to be inalienable, now the Bill of Rights is a mechanism for Washington D.C. to bestow the very few enumerated rights of the people and the states (exactly what many of the founders feared). Why then, if the states passed more amendments, would the tentacles of the Federal Government submit themselves to new limits on their authority?
Beyond that, would Congress even call an Article V Convention? By some estimates, over the past two and a half centuries, Congress has already received more than enough applications for a Convention, but has seemingly ignored them. In fact, a cursory examination into the matter of current applications is perplexing to the extreme. Thus far, Congress seems to have just ignored the matter, and might ignore it still even if the current batch of applications reaches the critical threshold. Worse yet, some naysayers even worry that Congress will attempt to control the convention. Indeed, if “regulate commerce…among the several states” can be interpreted to mean “control and otherwise micromanage all commerce, even within an individual state” then does it not stand to reason that “The Congress…shall call a convention for proposing amendments” might not actually mean “facilitate and otherwise orchestrate a convention for proposing amendments.” Is that really implausible?
Regardless as to whether the state legislatures or congress manages to wrest control of the convention, 38 states still need to vote in the affirmative to ratify an amendment. In a country where states are blocking travel over state bathroom policies, Is there anything that 38 states agree on? Whatever doubts are voiced about anything useful actually making it through the ratification process, they are definitely well founded.
In Texas, then, the debate over an Article V Convention often seems to focus on the utility of such an effort, or rather the possible futility. In fact, Thomas Jefferson and James Madison recognized early on that the only effective strategy to challenge federal power is nullification coupled with a very real threat of re-asserting state independence. Indeed, in any negotiation, it is important for each party to not shrink from asserting those areas where they have the other “over a barrel.” Austin most definitely has Washington D.C. over a barrel in a good many ways and it is thus crucial that, as we proceed to a resolution, we don’t lose our high ground by arguing that an out-of-control federal government has not been reigned in because we didn’t have the fortitude to “change the constitution” (i.e, as if the constitution is somehow the cause).
Nevertheless, Texans should be encouraged by the support for the Convention of States movement, because it belies a widely held sentiment that state sovereignty is crucial to our way of life, and that we must make plans to get it back.