Greg Abbot’s Constitutional Convention

Texas Governor Greg Abbot has called for a Constitutional convention of states.

UPDATE: Conservative Wahoo is in favor.

Why do I support it? A few reasons:
1) I am a political junkie. I’ve seen two impeachments proceedings in the House and one Trial in the Senate. I’ve never seen a convention of the states.
2) I think there are some places where the Constitution could be improved (see below), but I prefer that those improvements be WITHIN the Constitutional process rather than by Executive fiat (see, Obama, B.)
3) I believe it would energize people in this country to a great degree–equaled only maybe by war–to really think hard about what this country means to them.

He has a summary of the Mark Levin proposed amendments from his book.

A convention is one of two ways that the U.S. Constitution can be amended, and it’s described in Article V. One way is that Congress can propose amendments approved by two-thirds of the members of both chambers. The other method allows two-thirds of the state legislatures to call for a convention to propose amendments. Republicans backing the idea are confident that because they control state government in a majority of states, their ideas would prevail.

Democrats are horrified. The Huffington Post first ran this post with a headline that he wanted Texas to secede! I guess they thought better of the scare tactic.

Texas Gov. Greg Abbott (R) on Friday proposed a series of amendments to the U.S. constitution that would permit states to override the Supreme Court and ignore federal laws.

One of the proposed measures would allow a two-thirds majority of the states to override federal regulations, while another sets the same threshold for overturning decisions by the Supreme Court. The governor also wants to change the Constitution to block Congress from “regulating activity that occurs wholly within one state,” and to require a supermajority of seven Supreme Court votes before a “democratically enacted law” can be overturned.

OK. That’s fair enough.

The plan lays out nine specific proposed amendments that would:

Prohibit congress from regulating activity that occurs wholly within one state.
Require Congress to balance its budget.
Prohibit administrative agencies from creating federal law.
Prohibit administrative agencies from pre-empting state law.
Allow a two-thirds majority of the states to override a U.S. Supreme Court decision.
Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law
Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
Give state officials the power to sue in federal court when federal officials overstep their bounds.
Allow a two-thirds majority of the states to override a federal law or regulation.

Balancing the budget is probably pie-in-the-sky but the others sound reasonable to me.

Glenn Reynolds, who is a Constitutional Law professor thinks so, too.

This proposal has shocked some people. Writing in The Washington Post, Catherine Rampell — apparently unaware that the Constitution itself provides for amendments — is appalled, saying that Abbot wants to ”blow … up” the Constitution. According to Rampell’s analysis, if you love the Constitution, you can’t simultaneously want to change it.

This would come as a surprise to the framers, who actually ratified the Constitution and then, immediately, passed 10 amendments known as the Bill of Rights. They then followed up in short order with the 11th Amendment — protecting state sovereignty from federal courts — and the 12th Amendment, which corrected serious problems in the way presidential elections were conducted.

In fact, such a convention has been discussed for years but there have been fears that a state Constitutional convention could get out of hand.

opposition to a convention is more about locking in changes made through other means — Supreme Court decisions like Roe v. Wade and Baker v. Carr, or just longstanding bureaucratic practice that courts and the public have come to accept — rather than through a formal convention where the changes would have to be approved by the American people as a whole.

The real fear, I suspect, is that the proposals urged by Abbott, which would roll back much of the political class’s successful power-grab over the past century, would prove popular enough to pass. If that happened, the federal government would become both smaller and more accountable, two political-class nightmares.

In an era when Bernie Sanders and Donald Trump lead the two parties’ presidential campaigns, such fears seem a bit overwrought.

Reynolds’ conclusion is also apt.

Another nice feature of Abbott’s proposal — which is, as the Houston Chronicle notes, “well within … the mainstream of Republican governors” — is that it doesn’t depend on controlling the White House. The Constitution provides numerous checks and balances, and the Republicans are wise not to depend solely on the presidency.

I’m not yet ready to say that a convention to discuss constitutional amendments is a good idea. But to the extent it panics our current political class, which I believe to be probably the worst political class in our nation’s history, it’s looking like a better one.

Mark Levin, who I consider to be too strident, is also a Constitutional lawyer and wrote a book about a proposed convention in 2014.

Levin’s amendments include:

1. Term limits, including for justices.
2. Repealing Amendment 17 and returning the election of senators to state legislatures
3. A congressional supermajority to override Supreme Court decisions (overruling what could be a stacked court)
4. Spending limit based on GDP
5. Taxation capped at 15%
6. Limiting the commerce clause, and strengthening private property rights
7. Power of states to override a federal statute by a three-fifths vote.

There is some similarity to Abbot’s proposal.

22 thoughts on “Greg Abbot’s Constitutional Convention”

  1. Michael, you beat me to it. I was going to do a post on this as well but I’m still getting through the full pdf while trying to get some work done.

    Governor Abbott Unveils Texas Plan, Offers Constitutional Amendments To Restore The Rule Of Law:
    At the bottom of the page you can download a more detailed preamble and pdf. It’a interesting.

    As a spoiler, he takes aim with both barrels at the Commerce Clause as the root source of many of our troubles with federal overreach.

  2. It sounds like a constructive suggestion. But it would still be manned by American politicians, and would instantly be subject to the fountains of corrupting money.

  3. Republicans backing the idea are confident that because they control state government in a majority of states, their ideas would prevail.

    The National Whigs will oppose any effort for this Convention. Their goal is just the opposite of Governor Abbot; they want centralized authority in their hands with no appeal.

    It is appropriate to bring it up now, but to be honest nothing will be done until after any putative elections this year. If the Unified Governing Party takes enough damage in the vote, and the vote is honored, then it may be possible for the States to push something through. Otherwise, that route is foreclosed.

  4. “he takes aim with both barrels at the Commerce Clause”

    Oh, I agree completely. Heritage has a nice history of the clause.

    Over the course of the last decades, the commerce clause has been used as a primary source for the regulatory expansion of the national government. This reading of the clause, granting virtually unlimited regulatory power over the economy to the federal government, came out of a series of Supreme Court decisions at the time of the New Deal. In its original meaning, the clause functioned primarily as a constraint upon state interference in interstate commerce. Of the nearly 1,400 pre–20th century Supreme Court cases concerning this clause, the overwhelming proportion arose from state legislation. In recent years, the Supreme Court has for the first time since the New Deal begun to rein in Congress’s power under the commerce clause. While such developments are welcome, Congress, as a co-equal branch of government, need not take its cues from the Supreme Court and should take the lead in restoring its own limits to the commerce power. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

    The Supreme Court has been the villain here, mostly,

    From the beginning, Chief Justice John Marshall in Gibbons v. Ogden (1824) saw the power to regulate as coextensive with the other delegated powers of Congress. He declared: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” The manner in which Congress decides to regulate commerce, Marshall said, is completely at the discretion of Congress, subject only to the political check of the voters. This power, as it later turned out, includes the power to prohibit the transportation of articles, as well as to control their exchange and transportation. Champion v. Ames (1903).

    The New Deal completed the rout of Congress, which of course was complicit as Democrats controlled it.

    In 1935, Justice Benjamin N. Cardozo, concurring in the unanimous opinion in Schechter, suggested a test that would allow the government to regulate local activities if they had a proximate or foreseeable effect on interstate commerce: “The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions.” The following year, in striking down the Bituminous Coal Conservation Act, the Court accepted Cardozo’s proximate cause test. (Cardozo dissented from the decision on procedural grounds.) Writing for the majority, Justice George Sutherland declared: “The word ‘direct’ implies that the activity or condition invoked or blamed shall operate proximately—not mediately, remotely, or collaterally—to produce the effect. It connotes the absence of an efficient intervening agency or condition.”

    Schecter is the famous case that is at the heart of Amity Schlaes’ book, “The Forgotten Man.”

  5. >Balancing the budget is probably pie-in-the-sky <

    if you really want take power back: an amendment that any increase to the fed govt debt limit be approved by 3/5 or 2/3 of state legislatures rather than the current 280 clowns

  6. Constitutional conventions assume all people are created equal. They may be, but people aren’t when it come to public speaking, debate, and the ability to convince or railroad other people into voting for something. Bolsheviks know this hence a vanguard very adept at taking over a mass meeting. The Obama machine rolled right over other viewpoints in the Iowa caucuses in 2008. A constitutional convention would unleash Pandora’s box. The winners would be whomever overrode all other viewpoints. Lawyers maybe, or people far worse.

  7. I think we need to enforce the Constitution we have before we amend it.

    The Constitution we have does not authorize Obamacare, Social Security, Medicare, Medicaid, Food Stamps, Unemployment Insurance, or Obama Phones.

    The Constitution we have does not authorized paper money, national forests, national parks, or endangered species.

    The Constitution we have does not authorize the Departments of Education and of Housing and Urban Development.

    Abortion and buggery are not constitutional rights nor are they subjects of Federal jurisdiction in the Constitution we have.

    I could go on. But you get the idea. The problem is not with the words on paper. It is with a Federal Government that has grown far beyond its constitutional limits into a monstrosity. No constitutional convention is required to change that. Indeed, no constitutional convention is needed to do kill the beast. Further, since the existing Constitution does nothing to restrain the rapacity of our political class, no Constitutional amendment can restrain them either.

  8. A lot of what you complain about has been shoehorned in with the Commerce Clause and other extensions created by the USSC.

    Reining in the USSC is one aim of amending the Constitution. Marbury vs Madison was not in the Constitution.

    Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

    I suspect the Founders did not anticipate that decision.

    I know they did not anticipate Obama’s executive orders.

  9. he National Whigs will oppose any effort for this Convention. Their goal is just the opposite of Governor Abbot; they want centralized authority in their hands with no appeal.

    You mean the Federalist/Whig/Republican/Democrats?

    Mike, the case you need to overturn is Wickard v. Filburn, not Marbury. We got along well for 140 years under Marbury.

  10. Mike: The Supreme Court is assuredly a villan in the piece, but they are not alone, and their commerce clause jurisprudence is not the worst of it. Recall that the Dirty Little Coward John Roberts held that Obamacare was not a valid exercise of commerce clause power, so he pulled the taxing power rabbit out of his hat. There can be no doubt that the Supreme Court has been most destructive of our liberties, and 6 of them deserve immediate impeachment.

    But, the name of the problem is not Marbury, nor is it anything else that John Marshall wrote. The problem is not with the words on paper. It is with a Federal Government that has grown far beyond its constitutional limits into a monstrosity. No constitutional convention is required to change that. Indeed, no constitutional convention is needed to do kill the beast. Further, words do nothing to restrain the rapacity of our political class, additional words can not restrain them either.

  11. I’m with Viator —

    Such a convention would be a big story. Most Americans would be very interested in it.

    It would be covered by today’s media.

    Most Americans would get their information about it from that media.

    ‘Nuff said.

    (Hmmmmm. A constitutional “right” to a job? Gosh fellers, that sure sounds like a fine idea. Why not? Yep, uh huh.)

  12. Marbury did not immediately create the problem because we had a government run by honorable men for 130 years.

    Wilson tried to establish a fascist regime but was followed by Harding and Coolidge who dismantled it. Roosevelt was never reined in because the War came along and a generation became convinced the government was benign. Truman was slapped back with the Taft-Hartley law that was passed over his veto. Eisenhower appointed Earl Warren and the Court began to get out of control during the Civil Rights era when they had the moral high ground.

    It still all goes back to Marbury v Madison.

    It is beyond control now and only amending the Constitution will help. The education of the public that will occur is actually more important than the paper,

    The alternative is another civil war.

  13. Mrs. Davis Says:
    January 18th, 2016 at 9:19 pm

    I think you are British, so Whigs may mean something different for you. Here it refers not to the British party, but the American one that collapsed just before our Civil War. It was too tied into too many vested interests, and would not make any stands on anything. So it collapsed and what are now the Republicans rose from the ashes [and provoked the Civil War, which statement will probably start a flame war].

    In modern usage, Conservatives are referring to the Republican Party as the Whigs, because they share the same faults as the old Whigs and are going to collapse soon. They just haven’t noticed it yet.

  14. I fear that in the current climate of central authority and rampant corruption that such a convention would be hijacked by the wolves with each faction trading away the rights of the people to get their own pork and privileges codified for eternity, or as close to as they could manage. The people are too ignorant and too easily led to understand what is being done to them now, let alone when promises of “free” stuff with be thrown all over the place to get support.

  15. “such a convention would be hijacked by the wolves ”

    This, of course, is the fear and I don’t know that it is mistaken. The alternative, I fear, is revolution which would be violent.

    The blue enclaves on the coasts could end up as city-states like Singapore or Hong Kong but they have the same problems that all city states have if they get too rich. Who will defend them ?

    If you look at a map colored by voting preferences, you see a possible end game. Here, for example, is one by House districts that shows a pattern.

    Congressional districts are of basically equal population, and Democrats tend to roll up big margins in densely populated areas. So while voters have elected at least 244 Republican congressmen and probably will end up with at least 247 — more than in any election since 1928 — the map overstates their dominance.

    But it does tell us something about the geographic and cultural isolation of the core groups of the Democratic Party: gentry liberals and blacks.

    I don’t know that this could happen peacefully. A lot would depend on what the military would do. The McChrystal story suggests on possibility.

  16. Mike, thanks for the McChrystal (read MacArthur/Truman, aka conservative/progessive) link. Mostly agree with its succinct summary and its conclusion that in the end those championing preserving the USA tend to win vs those more likely to concede in the struggle to accomplish that preservation. But, nB, Obama’s winning his 1st much less his 2nd term does pose a puzzle for that paradigm. The SCOTUS decisions prompting the Constitutional Convention meme do, too. Does the contrary paradigm now rule?

    Bottom line imho (echoing what I perceive as the heart of GFV’s “BAM”): does the USA have people with the character and courage to insist on preserving the nation?

    I take as correctly weighty the caveats about a Consitutional Convention unloosing license. Only that it seems there exists no other way to accomplish preservation should we consider that option. In that mind, I appreciate Sowell’s arguing that states calling for a Convention means built-in checks against license

  17. The Sowell piece, as usual, is very sensible and reassuring.

    The coming decision on immigration will be a clue if the pendulum is starting to swing back. If not….

  18. “The first political blow came almost immediately. In November of 1952, Americans rejected Illinois Governor Adlai Stevenson, the Democrats’ nominee to replace the by now highly unpopular Truman. In a sign of things to come, they elected retired General Dwight D. Eisenhower — MacArthur’s one-time aide and the commander of D-Day — as president, along with a GOP House and Senate.”

    You might say it came a bit earlier than that in July at the 1952 GOP convention in Chicago. Robert “Mr. Republican” Taft had garnered more votes in the primaries, but Ike, drafted late in the game by Henry Cabot Lodge and Thomas Dewey, steadily built up a lot of momentum into the summer. It all came to a head at the convention when a controversy erupted over seating southern delegates. Everett Dirksen gave his infamous ‘you took us down the path to defeat’ speech while a fight broke out on the floor. When the dust finally settled, the isolationist Old Right led by Taft was finished, and the GOP vaulted into power on an internationalist course.

  19. Taft also had a rather grating personality. I remember enough that he was a school marm-like person. Ike was a big smile and “I Like Ike” buttons.

    My mother, who was a Democrat, wore one. When I voted for Nixon in 1960, my family was furious. A few years later, my mother was telling people she had always been a Republican.

    Most people have forgotten Taft and that his father was president.

  20. That election year was definitely remembered in my family. The story was my grandfather supported Taft. My grandfather’s mother used to raise marigolds and sell them to Dirksen’s family. Whatever Dirksen said was gospel. He was like a patron saint in our part of the state.

    My father, on the other hand, a young whippersnapper at the time, liked Ike, as did everyone else I guess. My dad did go rogue later and voted for JFK, but then he switched back to Goldwater after starting a business. He then stuck with the GOP for the rest of his life.

    From Barone’s article:

    “These were the two groups gathered together when Barack Obama had the opportunity to draw the new lines of his state Senate district after the 2000 census. He combined the heavily black South Side of Chicago with Gold Coast gentry liberals north of the Loop.”

    That local coalition is now forever fractured since the Laquan McDonald coverup.

    “But blacks are not a growing segment of the population, and Democrats will never again win by the margin Obama enjoyed among blacks in 2008 — 91 points, or 12 points of the entire electorate.”

    Trump may get the most black votes since Reagan

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