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Nick Dranias, 11 years ago
The states have the power to instruct delegates to the convention to limit the convention to a particular subject matter or even to vote up or down a particular amendment. This would be done by way of state law. The states can also enact ancillary laws that disqualify unauthorized votes or that deny ratification, in advance, to any proposal that violate the instructions of delegates to a convention.
If you use an agreement among the states, like the interstate compact approach in Compact for America, you would also give those instructions the status of a contractual obligation, which would lock them down from future alteration or impairment under the U.S. Constitution’s Contracts Clause. And if Congress were to consent to that compact, current case law would deem those limitations on the subject matter of the convention the equivalent of federal law as well.
For a specific example of how this would be done, visit http://www.goldwaterinstitute.org/compactforamerica
Nick Dranias, 11 years ago
Education is perhaps the policy area that the Founders most clearly would have regarded as exclusively within the jurisdiction of state and local government. For that reason, any education program that has roots in federal legislation warrants a skeptical eye, if for no other reason than to encourage the federal government to focus on what it should be doing, rather than policy matters that are best handled by state and local government! Quite literally, the federal government just does not know best when it comes to education policy. School choice in the form of charter schools, vouchers and most recently education savings accounts are the real areas of education innovation and they have all gotten their legs with trial and error in the states. By contrast, education policy standards common core, which take a one-size-fits-all approach (at best) that does not have any real chance of improving on education, always seem to arise from a federal initiative–and all too often prompted by special interests that have books to sell or computers to hawk.
Nick Dranias, 11 years ago
It is clearly possible for the states to target the Article V convention process. The most obvious touchstone for refuting the “runaway convention” view of Article V is the undeniable fact that both congressionally proposed and convention-proposed amendments are textually subject to the same ratification requirements. Both amendment approaches are encapsulated within the same sentence, modified by the same clause. In view of this fact alone, no serious case can be made that an Article V convention is authorized to sidestep our Constitution’s existing framework.
Furthermore, in addition to Hamilton’s promise to the States in Federalist No. 85, it is manifestly evident from Federalist No. 43 that both the Framers and Ratifiers meant for the States to control the Article V convention process. There, James Madison wrote that Article V “equally enables the general and the State governments to originate the amendment of errors.” Similar understandings were repeatedly articulated by advocates of ratification during the Connecticut, Massachusetts, New Jersey, Pennsylvania, and Virginia ratification conventions.
Even apart from the text and context of Article V, the ability of the States to control the Article V convention process is implicit in the structure of our federal constitution. The fact that Article V does not specify whether the states or Congress control the convention process is not proof of an unknowable unknown. It underscores that Article V neither delegates the power to control the convention to Congress nor prohibits the states from doing so. This implies the states retained the power to control the convention under the principles of the Tenth Amendment because the states had the traditional power to convene interstate conventions and control them through delegate instructions.
In short, contrary to the myth of the “runaway convention,” Article V plainly codifies one and the same limited amendment power, which was meant to be exercised two ways—one by Congress and the other by the States. And it would make no sense to have a pathway for amendments to be advanced by the states if they couldn’t target it to desired amendments!
Nick Dranias, 11 years ago
What doesn’t?
Everything from Obamacare, to background checks on gun purchases, to Obesity zoning, to voter qualification, to NSA surveillance can and do often involve overreach by the federal government into areas over which the Constitution originally meant for states to have exclusive jurisdiction. If the states were to be protected in their exclusive jurisdiction, we would all experience a lot more freedom and a lot more policy options!
Nick Dranias, 11 years ago
The approach can be effective if and only if it takes serious existing case law and is built around a solid legal theory that can actually win in court. If the premise is some sort of Dungeons & Dragons approach to where the law “ought to be” rather than where it currently is or where it can logically go under current precedent, then what the effort will boil down to is civil disobedience at best, or kookiness at worst. There may be a time for civil disobedience, but that time is not now in my judgment.
That said, there are some great ideas out there. The Montana Firearms Freedom Act is one, which I have supported in litigation and even argued in support of it before the 9th Circuit Court of Appeals as an amicus representative.
Here is what states can do that is completely constitutional and effective:
1) Use the Obamacare decision’s more restrictive understanding of the Necessary and Proper Clause to force a clash between state law authorizing liberalized gun manufacturing and possession and expansive interpretations of the Commerce Clause that underlie much of current federal gun laws.
2) Use the Heller and MacDonald decisions’ language to codify in state and local law unquestionably valid gun rights claims under the Second Amendment.
3) Use the Printz and New York decisions’ anti-commandeering principle to deny any federal gun regulation that deviates from the original understanding of the Commerce Clause and the Second Amendment any state or local police assistance, cooperation or resources, and further prohibit such assistance, cooperation or resources by any state or local official.Nick Dranias, 11 years ago
I regard the Convention of the States project as a critical component of the long game for serious structural reform of the federal government. It uses the state origination of constitutional amendments to restore original meaning of the constitution. The challenge is getting through the hurdles imposed by Article V of the U.S. Constitution. You will need 34 states to apply to Congress, Congress to call the convention, at least 26 states to send delegates, the Convention to actually do something worthwhile, Congress to refer out the proposed amendments, and 38 states to ratify. That’s 100+ pieces of legislation!
A huge push! But one worth pursuing. A quicker approach would be Compact for America, which consolidates all of these components into two overarching pieces of legislation–one state compact, joined by 38 states, and one congressional resolution, passed by simple majorities. Learn more about it here: http://www.compactforamerica.org and http://www.facebook.com/compactforamerica.
But both tactics should be in play. Keep in mind that the Founders sold the ratification of the Constitution to the states on the basis of their ultimate power to rein in the federal government under Article V. Just read Federalist No. 85. You can’t be a constitutionalist or a federalist without supporting COS and CFA.
Nick Dranias, 11 years ago
Welcome to the party, Mark Levin! The Goldwater Institute (through yours truly) commissioned Rob Natelson’s seminal three part policy report urging the states to use their power under Article V to originate constitutional amendments nearly 3 years ago. Since then, I’ve been battling for various Article V initiatives in over 20 states. Our most recent effort is Compact for America, which uses an agreement among the states to determine in advance all aspects of the Article V convention process, to quickly and safely advance a powerful balanced budget amendment. I call it Article V 2.0. Read more about it here: http://www.goldwaterinstitute.org/articlev
All of Mark Levin’s proposed amendments are great policy ideas that I fully support. The only caveat I have is the fact that you need 38 states to ratify them. And some of the proposed amendments are going to have a very hard, if not impossible, time getting more than 25 behind them.
But hey, nobody said changing the world is easy. Go for it!
Nick Dranias, 11 years ago
Federalism is our system of dual sovereignty between the states and the federal government. It is also called a “compound republic.” The original idea was that the states would be supreme in their sphere of local governance and the federal government would be supreme in its sphere of interstate, national and international governance. Constitutional amendments have allowed the federal government to play a supervisory role (properly) in state matters that involve civil rights, however, incorrect federal court decisions have also resulted in federal overreach into matters that really should just be state and local.
Nick Dranias, 11 years ago
The premise of the Supremacy Clause of the Constitution is that the federal law given supremacy over state law is itself Constitutional. So whenever, in fact, federal law is unconstitutional, then that federal law will not be supreme. This is the gap that state law can fill. State law can be used to resist federal laws that are unconstitutional. And if the theory underlying that constitutional judgment is correct, then the state law will be left standing and the federal law will not.
Nick Dranias, 11 years ago
Duck Dynasty!
Actually, I’ve never watched the show. But in answer to your question, I have no idea. I don’t speak for Republicans or Conservatives on gay marriage. But as a matter of Federalism–the proper balance between state sovereignty and the federal government–I believe that the core of the recent SCOTUS decision is the premise that the 5th Amendment can be construed to protect rights and privileges that are enshrined in state law, especially when state law is exercising a traditional power retained by the states, such as the power to define marriage. So long as a state through its laws or constitution establishes marital rights and privileges, it is likely that the Supreme Court will enforce those rights and privileges as against the federal government under the 5th Amendment. In my view, this is not necessarily a bad outcome for Federalism IF and ONLY my understanding of the Court’s reasoning is correct–that the protection of “gay marriage” is activated under the Fifth Amendment by states exercising their reserved powers under the Tenth Amendment to do so. If my understanding of the Court’s reasoning is incorrect, and if the Court is really advancing the proposition that the 5th Amendment protects gay marriage regardless of state law, then such reasoning is not necessarily consistent with principles of Federalism.
